Dudley v. City of Charlotte

Devin, J. The findings of fact made by the court below were based upon the written evidence offered, and we see no reason to disturb them. From these findings the conclusion’s of law reached by the court and the denial of plaintiffs’ motion for a restraining order logically followed. The contention of plaintiffs that the maintenance of a large recreational park near the property on which they had built their homes would, under the circumstances, constitute a nuisance cannot be sustained. A public park established by lawful municipal authority cannot be held a nuisance per se (Public Laws 1923, ch. 83), nor is there any reasonable ground for anticipating that the park in this case will *641 be so operated as to become one under tbe facts found by the court. Atkins v. Durham, 210 N. C., 295, 186 S. E., 330; City of Lynchburg v. Peters, 145 Va., 1, 133 S. E., 674:; Page v. Commonwealth, 157 Va., 325, 160 S. E., 33; 39 Am. Jur., 289; 38 Am. Jur., 359; 3 McQuillin, sec. 1356. In the absence of covenants in the deeds or other valid restrictions upon the use of the land for a public park, its acquisition and dedication to that purpose was a matter within the discretion of the governing-authorities, and may not be enjoined by the courts. Messer v. Smathers, 213 N. C., 183, 195 S. E., 376. The plaintiffs’ objection that the purchase of the land for a park entailed expenditures by the Park Commission for the construction of a bridge on another’s property is untenable. The agreement to build the bridge was a part of the consideration for the conveyance, and the cost involved was comparatively small. Nor was the action of the city of Charlotte in acquiring right of way for a street or road leading to the park beyond its power. It is true there is a condition annexed to the conveyance that in the event this street should be paved the city agrees not to assess grantor’s abutting property for any part of the cost, in apparent disregard of the mandatory requirement of sec. 52 of the city charter, but this agreement comes within the exception provided by the 1943 amendment to the charter. Furthermore, it appears that the city has adopted a resolution not to pave or permanently improve this street. The fact that the deeds to the city and to the Park Commission do not convey unconditional titles in fee does not afford ground for enjoining the completion of the transaction. The city and the Park Commission had power to acquire property for proper municipal purposes by conveyances in whatever form the governing authorities deemed wise, provided there was no reasonable ground to apprehend loss or waste of public funds resulting therefrom. The action of the city and the Park Commission in entering into the agreements embodied in the conveyances referred to will not be deemed beyond their powers on the ground that the life of the agreements may extend beyond the terms of the present members of defendants’ governing boards. These transactions come within the principle stated in Plant Food Co. v. Charlotte, 214 N. C., 518, 199 S. E., 712; 3 McQuillin, 952. "We conclude that the ruling of the trial court in denying the motion for a restraining order must be Affirmed.