Hall v. City of Morganton

Supreme Court of North Carolina

Hall v. City of Morganton

151 S.E.2d 201, 268 N.C. 599, 1966 N.C. LEXIS 1268

CourtSupreme Court of North Carolina

DecidedNovember 30, 1966

Docket355

StatusPublished

Cited by7 cases

This text of 151 S.E.2d 201 (Hall v. City of Morganton) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hall v. City of Morganton, 151 S.E.2d 201, 268 N.C. 599, 1966 N.C. LEXIS 1268 (N.C. 1966).

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Opinion

Higgins, J.

This Court has allowed the plaintiff to amend the complaint by attaching as an exhibit thereto a power of attorney executed by Calvin Fairchild ratifying the bringing of this action by Kirby Hall and authorizing him to prosecute it as attorney in fact. Under the rules, therefore, this is the only question to be reviewed here: Did the plaintiff make a sufficient showing to justify the court’s order continuing the temporary restraint, preserving the status quo until the final hearing? Injunctive relief is granted *601 only when irreparable injury is real and immediate. Membership Corp. v. Light Co., 256 N.C. 56, 122 S.E. 2d 761; Starbuck v. Havelock, 252 N.C. 176, 113 S.E. 2d 278.

The court issued the restraining order and continued it to the hearing upon the basis of the verified complaint and the supporting affidavit of Wheeler Dale. The defendants have filed a demurrer but have not filed an answer. According to the complaint, the defendants have threatened to cut off the water supply to the Fair-child residence unless the owner switches its source of electric current from Duke Power Company to the power facilities operated by Morganton. According to Dale’s affidavit, Duke owns a power easement over the owner’s land to the dwelling. While Duke was supplying power, the City contracted with the owner for the tap on the City’s water main. For this privilege Dale paid the City $300.00. At all times the owner has been current in the payment of his accounts. If the City fails to supply water the dwelling will be uninhabitable.

More is involved in this case than the right to require the City to serve a customer outside the City limits. Fulghum v. Selma, 238 N.C. 100, 76 S.E. 2d 368. On the present showing the question is whether the City may force the home owner to switch from Duke Power to City power by a threat to sever the owner’s connection with the City water system for which he paid $300.00. The court has power to restrain a municipal corporation’s threatened wrongful acts. Wishart v. Lumberton, 254 N.C. 94, 118 S.E. 2d 35.

The complaint and affidavit filed by the plaintiff furnish sufficient factual basis for Judge Froneberger’s order continuing the restraint to the hearing. The order is

Affirmed.

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Higgins, J.

This Court has allowed the plaintiff to amend the complaint by attaching as an exhibit thereto a power of attorney executed by Calvin Fairchild ratifying the bringing of this action by Kirby Hall and authorizing him to prosecute it as attorney in fact. Under the rules, therefore, this is the only question to be reviewed here: Did the plaintiff make a sufficient showing to justify the court’s order continuing the temporary restraint, preserving the status quo until the final hearing? Injunctive relief is granted *601 only when irreparable injury is real and immediate. Membership Corp. v. Light Co., 256 N.C. 56, 122 S.E. 2d 761; Starbuck v. Havelock, 252 N.C. 176, 113 S.E. 2d 278.

The court issued the restraining order and continued it to the hearing upon the basis of the verified complaint and the supporting affidavit of Wheeler Dale. The defendants have filed a demurrer but have not filed an answer. According to the complaint, the defendants have threatened to cut off the water supply to the Fair-child residence unless the owner switches its source of electric current from Duke Power Company to the power facilities operated by Morganton. According to Dale’s affidavit, Duke owns a power easement over the owner’s land to the dwelling. While Duke was supplying power, the City contracted with the owner for the tap on the City’s water main. For this privilege Dale paid the City $300.00. At all times the owner has been current in the payment of his accounts. If the City fails to supply water the dwelling will be uninhabitable.

More is involved in this case than the right to require the City to serve a customer outside the City limits. Fulghum v. Selma, 238 N.C. 100, 76 S.E. 2d 368. On the present showing the question is whether the City may force the home owner to switch from Duke Power to City power by a threat to sever the owner’s connection with the City water system for which he paid $300.00. The court has power to restrain a municipal corporation’s threatened wrongful acts. Wishart v. Lumberton, 254 N.C. 94, 118 S.E. 2d 35.

The complaint and affidavit filed by the plaintiff furnish sufficient factual basis for Judge Froneberger’s order continuing the restraint to the hearing. The order is

Affirmed.

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151 S.E.2d 201, 268 N.C. 599, 1966 N.C. LEXIS 1268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-city-of-morganton-nc-1966.

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