North Carolina State Highway & Public Works Commission v. Brown

Supreme Court of North Carolina

North Carolina State Highway & Public Works Commission v. Brown

77 S.E.2d 780, 238 N.C. 293, 1953 N.C. LEXIS 438

Supreme Court of North Carolina·Decided September 30, 1953·Published·Cited by 1 cases

Opinion

JohNsoN, J.

Tbe record discloses, and it was conceded on tbe argument, that tbe drainage pipe installation complained of is now fait accompli, or a fact accomplished. This being so, there was nothing to support the preliminary order restraining the defendants from “further erection and installation” of the pipes. Hence the plaintiff suffered no harm from the dissolution of the order. Groves v. McDonald, 223 N.C. 150, 25 S.E. 2d 387; Rousseau v. Bullis, 201 N.C. 12, 158 S.E. 553. See also 43 C.J.S., Injunctions, Sec. 246.

As to the court’s refusal to allow the plaintiff’s motion for a preliminary order of injunction requiring the defendants to remove the drainage pipes pending trial of the cause, the rule is that ordinarily “such an order will not be made as a preliminary injunction, except where the injury is immediate, pressing, irreparable, and clearly established, . . .” McIntosh, North Carolina Practice and Procedure, Sec. 851, p. 972; R. R. v. R. R., 237 N.C. 88, 74 S.E. 2d 430; Clinard v. Lambeth, 234 N.C. 410, 67 S.E. 2d 452. A study of the record leaves the impression that the plaintiff has failed to establish preliminary equities within the purview of this rule. The judgment below is

Affirmed.

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JohNsoN, J.

Tbe record discloses, and it was conceded on tbe argument, that tbe drainage pipe installation complained of is now fait accompli, or a fact accomplished. This being so, there was nothing to support the preliminary order restraining the defendants from “further erection and installation” of the pipes. Hence the plaintiff suffered no harm from the dissolution of the order. Groves v. McDonald, 223 N.C. 150, 25 S.E. 2d 387; Rousseau v. Bullis, 201 N.C. 12, 158 S.E. 553. See also 43 C.J.S., Injunctions, Sec. 246.

As to the court’s refusal to allow the plaintiff’s motion for a preliminary order of injunction requiring the defendants to remove the drainage pipes pending trial of the cause, the rule is that ordinarily “such an order will not be made as a preliminary injunction, except where the injury is immediate, pressing, irreparable, and clearly established, . . .” McIntosh, North Carolina Practice and Procedure, Sec. 851, p. 972; R. R. v. R. R., 237 N.C. 88, 74 S.E. 2d 430; Clinard v. Lambeth, 234 N.C. 410, 67 S.E. 2d 452. A study of the record leaves the impression that the plaintiff has failed to establish preliminary equities within the purview of this rule. The judgment below is

Affirmed.

North Carolina State Highway & Public Works Commission v. Brown, 77 S.E.2d 780, 238 N.C. 293, 1953 N.C. LEXIS 438 (N.C. 1953).

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Opinion

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