Lee v. Town of Waynesville

Hoke, J. From a consideration of the legislation applicable, it appears that the board of aldermen are possessed of ample authority to enter into the proposed improvements of straightening and widening the streets, and to condemn the property required for the purpose on payment of reasonable and just compensation. Private Laws 1885, ch. 127, sec. 16; Public-Local Laws, Extra Session 1921, ch. 28, see. 3; C. S., 2791-2792; Jeffress v. Greenville, 154 N. C., 490; Waynesville v. Satter-thwait, 136 N. C., 226. This being true, it is the accepted principle, declared and upheld in numerous decisions with us, that courts may not interfere in a given case with the exercise of discretionary powers conferred on these local administrative boards for the public welfare, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of their discretion. Newton v. School Committee, 158 N. C., 186-188, citing Jeffress v. Greenville, 154 N. C., 490; Rosenthal v. Goldsboro, 149 N. C., 128; Ward v. Comrs., 146 N. C., 534; Small v. Edenton, 146 N. C., 527; Tale v. Greensboro, 114 N. C., 392; Brodnax v. Groom, 64 N. C., 244. And there may be added the cases of Dula v. School Trustees, 177 N. C., 426-431; Crotts v. Winston-Salem, 170 N. C., 24; Durham v. Rigsbee, 141 N. C., 128. In Rosenthal *569 v. Goldsboro, supra, the Court, quoting from and interpreting tbe ease of Tate v. Greensboro, 114 N. C., 392, stated tbe position referred to as follows: “Tbe law gives to municipal corporations an almost absolute discretion in tbe maintenance of tbeir streets, since wide discretion as to tbe manner of performance should be conferred where responsibility for improper performance is so heavily laid. “Tbe charter of tbe city of Greensboro and tbe several laws of tbe State (Tbe Code, cb. 62, vol. 2) gives to tbe municipal authorities of that city wide discretion in tbe control and improvement of its streets, and if damage results to an abutting property owner by reason of acts done by it neither negligently nor maliciously and wantonly, but in good faith in tbe careful exercise of that discretion, it is damnum, absque injuria. “Tbe courts will not interfere with tbe exercise of a discretion reposed in tbe municipal authorities of a city as to when and to what extent its streets shall be improved, except in cases of fraud and oppression constituting manifest abuse of such discretion. “In order to show bow far the principle was applied in that decision, it appeared that tbe city authorities, having concluded that tbe trees, from tbeir shade and placing, tended to prevent tbe proper maintenance of tbe streets in reference to tbe public benefit and convenience, ordered tbeir removal, and on tbe bearing tbe judge found: ‘That tbe trees did not obstruct tbe passage of persons on tbe sidewalk; that tbe public convenience did not require tbeir destruction; that tbe mud bole in tbe street, for tbe removing of which this act seems to have been done, could have been remedied without cutting down tbe trees.’ And on tbe facts, Burwell, J., in bis well considered opinion, thus stated tbe question presented: 'This phase of tbe case presents for our consideration this question: Can tbe courts review tbe exercise by tbe city of Greensboro of its power to repair and improve its streets and remove what it considers obstructions therein, and find and declare that certain trees in tbe streets of that city, which tbe municipal authorities honestly believe were injurious and obstructive to tbe public, were in fact not so, and upon such findings, there being no allegation of negligence or of any want'of good faith on tbe part of tbe city, award damages to an abutting proprietor, tbe comfort of whose home has been lessened by tbe removal of tbe trees V “And in reference thereto, among other things, said: ‘Hence it is that tbe law gives to all such corporations an almost absolute discretion in tbe maintenance of tbeir streets, considering, it seems, as is most reasonable, that wide discretion as to tbe manner of performance should be conferred where responsibility for improper performance is so heavily laid. Illustrative of this is tbe provision of Tbe Code, 3803, that tbe *570 commissioners of towns “shall provide for keeping in proper repair the streets and bridges of the town in the manner and to the extent they may deem best.” We think that under its charter and under the general laws of the State (The Code, eh. 62, vol. 2) the city of Greensboro was clothed with such discretion in • the control and improvement of its streets, and if damage comes to the plaintiff by reason of acts done by it, neither negligently nor maliciously and wantonly, but in good faith in the careful exercise of that discretion, it is damnum obseque injuria. Smith v. Washington, 20 How., 136; Brush v. City of Carbondale, 78 Ill., 74; Pontiac v. Carter, 32 Mich., 164.’ ” It is the recognized rule of procedure in appeals of this character that the Court is not concluded by the finding of facts made by the trial judge. Hyatt v. DeHart, 140 N. C., 270, and on consideration of the entire evidence, and in view of the principle sustained by the authorities above cited, we are of opinion that the judgment of his Honor cannot be sustained. While the plaintiff and several other witnesses submitted affidavits to the effect that in their opinion the appropriation of plaintiff’s property, to the extent proposed, will cause them irreparable damage, and is not at all required by the public good, and will practically destroy their property as a residence, there are affidavits from several of the board of aldermen and the city engineer to the effect that on learning that there would be objection made to the condemnation as proposed, they caused a resurvey to be made; that they also made personal examination of the locality, and passed the resolution with the consultation and advice of numerous citizens and taxpayers, on being convinced that the cutting off of the acute angle of plaintiff’s yard was necessary to the convenience and safety of the public using the streets and sidewalks in that locality. These resolutions and findings are supported by the affidavits of several citizens, that the proposed change is desirable, and even necessary; and there are, too, facts in evidence permitting the inference that the damage to the property will not be so extensive as plaintiffs now think and contend. Here is sharp divergence of opinion certainly, but nothing to justify a conclusion that there has been gross abuse of discretion on the part of' defendants to the manifest oppression of plaintiffs. This view is also confirmed by a perusal of the official map put in evidence showing the sharp projection of plaintiffs’ lot into the present course of three important and much frequented streets, where, even in the opinion of the trial court, there should be a further condemnation of fifteen feet of this angle. The objection to the judicial modification of defendant’s resolution, however, is that the question is primarily and exclusively submitted to the municipal government, and his Honor has no power whatever in the premises unless and until manifest abuse and oppression are first established. Nor is there any ques *571 tion of estoppel presented by reason of tbe fact that the streets were laid off as they now exist before plaintiffs ever built and improved the property. The better opinion being that the power of condemnation, in cases of this character, is a continuing one to be exercised when and to the extent that the public good may require. Power Co. v. Wissler, 160 N. C., 269; Elliott on Roads and Streets (3 ed.), sec. 260. On the record and the facts as thus far presented, we are of opinion that no right to a restraining order has been shown, and the judgment of the trial court must be set aside. Eeversed.