Shaw v. Liggett & Myers Tobacco Co.

Denny, J. It was admitted in the oral argument before this Court that the plaintiff has ho interest in the subject matter of this action, except as an interested taxpayer of the City and County of Durham. The action of a city or town in authorizing the closing of a street, cannot be successfully challenged in a civil suit instituted by a private citizen whose only interest therein is that of a general taxpayer of the *478 city or town. Such action, if maintainable at all, must be instituted by a landowner whose property is affected by the change, and who will suffer some peculiar and special injury by reason of it; an injury not suffered by the public generally. Moore v. Meroney, 154 N. C., 158, 69 S. E., 838; Trotter v. Franklin, 146 N. C., 554, 60 S. E., 509; Pedrick v. R. R., 143 N. C., 485, 55 S. E., 877. Cf. Stratford v. Greensboro, 124 N. C., 127, 32 S. E., 394; Sanders v. R. R., 216 N. C., 312, 4 S. E. (2d), 902; and Sanders v. Smithfield, 221 N. C., 166, 19 S. E. (2d), 630. In Trotter v. Franklin, supra, the appeal was from an order dissolving a restraining order theretofore issued at the instance of the plaintiff, a taxpayer of the Town of Franklin, to prevent the town authorities from closing a street on which the plaintiff owned no property. The holding of this Court is succinctly stated in the syllabus of the opinion, as follows: “Matters relating to closing by-streets of a town are of a ministerial character, exclusively within the proper action of the town authorities, and not subject to regulation by the court at the suit of one upon the ground that he is a taxpayer.” It appears from the record herein that all persons, firms and corporations, now having any interest in property fronting on Fuller Street, in the City of Durham, have given their written consent to the closing of that part of the street which the defendant proposes to close. Therefore, for the reason herein stated, the order dissolving the temporary restraining order will be upheld. Affirmed.