Kinsland v. . Kinsland

120 S.E. 358, 186 N.C. 760, 1923 N.C. LEXIS 333

• Court: Supreme Court of North Carolina
• Decided: December 20, 1923
• Status: Published

Opinion

Hoice, J.

In sections 2555, 2556, 2557, and 2558, Consolidated Statutes, provision is made for obtaining relief where one conceives himself damaged by the erection of a grist-mill or mill for other useful purpose, and ordinarily, in cases to which the statute applies, the remedy given must be pursued. The history of this legislation and the reason for it, together with an interpretation of its meaning and purpose, appears in Hester v. Broach, 84 N. C., 253, and other cases on the subject.

"While there are allegations in plaintiff’s affidavit which tend to show wrongful trespasses committed on plaintiff’s land lying on Watauga Creek in said county, just above that of defendant’s, and which are of such a nature that they might well be made the subject of injunctive relief, it also appears that the principal damage complained of is caused by the erection and maintenance of a dam on the land of defendant for the operation of the latter’s mill, also situate thereon, and in view of the above legislation, and of the harm that may come to defendant and the community in the lawful effort to properly run his said mill, we consider it advisable and right that the restraining order be presently dissolved without .prejudice to the rights of plaintiff to renew his application therefor when the pertinent facts appertaining to the question shall have been more definitely established at the final hearing. This will be certified that the restraining order be dissolved.

Error.