Combs v. County Commissioners

Allen', J. The power conferred upon the defendants by the statute-under which they are acting is to enter upon uncultivated lands for the-purpose of procuring soil to use in the construction of roads, and if the-land of the plaintiff is cultivated land they are without authority of law. The question has been settled against the contention of the defendants upon the facts found by his Honor in three cases in our reports (S. v. Allen, 35 N. C., 36; S. v. McMinn, 81 N. C., 585; S. v. Campbell, 133 N. C., 640), and we see no reason for departing from the definition there-given to the term “cultivated field,” which is “that where a piece or tract of land has been cleared and fenced and cultivated, or proposed to be cultivated, and is kept and used for cultivation according to the ordinary course of husbandry, although nothing may be growing within the inclosure at the time of the trespass, it is a cultivated field within the meaning of the statute.” If the defendants have no right to enter upon the lands of the plaintiff, do their acts, present and threatened, in going upon the land and taking the topsoil therefrom, thereby destroying it for the purposes for which it has been used, constitute irreparable injury? It is true that equity will not ordinarily restrain a mere trespass, if due compensation can be awarded for the injury, but if the trespass is continuous in its nature, or if it will destroy or seriously impair the property and prevent its enjoyment as it has been used, equity will interfere. “Equity will not interfere to restrain a trespasser simply because he is a trespasser. The injury complained of must be ruinous to the property in the manner in which it has been enjoyed, and such as permanently to impair its future enjoyment.” Bispham’s Eq., sec. 436. In Cowper v. Baker, 17 Ves., 128, Lord Eldon restrained the taking *91 of certain stones necessary in tbe manufacture of cement “because it was taking away tbe substance of tbe inheritance.” Bisph., see. 436. “Nor will equity interfere to restrain a trespasser simply because be .is a trespasser, but only because tbe injury threatened is ruinous to tbe property in tbe manner in which it has been enjoyed, and will permanently impair its future enjoyment.” 1 High Inj., sec. 701. “Tbe rule is well settled that when tbe injury goes to tbe destruction of tbe inheritance, it is irreparable, and tbe trespass will be enjoined. Tbe injury may consist in tbe destruction of that on which tbe value of tbe estate depends, or in tbe destruction of tbe estate in tbe character in which it has been enjoyed. So threatened occupation by permanent structures may be enjoined. Tbe injury would be irreparable in its nature. . . . When municipal authorities threaten to enter upon and take permanent possession of land for a public use without having acquired tbe right by complying with tbe statutory requirements, an injunction may be granted in part and refused in part.” 22 Cyc., 831 et seq. “In tbe application of this restriction, much difficulty occurs in defining what injury is irreparable. Tbe word means that which cannot be repaired, retrieved, put back again, atoned for.” Gause v. Perkins, 56 N. C., 179. We may conclude with tbe statement of tbe Court in Lumber Co. v. Cedar Works, 158 N. C., 161, which is equally applicable to tbe defendants : ' “It would be a most extraordinary destruction of tbe rights of property if a private corporation possessing no power of eminent domain could seize tbe lands of another to which it bad no semblance of title and appropriate them to its own use simply because it was able to respond in damages. This contention of tbe defendants is, in our opinion, without support in reason or authority.” Being, therefore, of tbe opinion that tbe land of tbe plaintiff is not an uncultivated field, and that tbe plaintiff is entitled to injunctive relief, tbe judgment is Affirmed.