Crawford v. Town of Marion

BeowN, J. It was contended upon the argument that this action cannot be maintained and should be dismissed, as its sole purpose is to prohibit by injunction the prosecution of the plaintiff under an ordinance of the town, criminal in its nature, and that tbe principle settled by the cases of Wardens v. Comrs., 109 N. C., 21; Cohen v. Comrs., 77 N. C., 2, and Paul v. Washington, 134 N. C., 379, applies. ■We recognize and reaffirm tbe authority of those cases in holding that a court of equity will not enjoin tbe enforcement *75 of a criminal ordinance or statute, but will leave tbe party to make bis defense at law wben be is arrested and charged witb tbe crime. But tbis action does not seek to enjoin tbe enforcement of tbe criminal law, as was tbe case in tbe eases cited. If tbe authorities charged witb its enforcement think that plaintiff has violated tbe criminal law, they have tbe right to prosecute him in tbe criminal courts, notwithstanding tbe pen-dency of tbis action, which is brought solely for tbe purpose of determining and enforcing certain property rights of tbe plaintiff, and in tbis respect tbe case differs essentially from those cited. Tbe plaintiff alleges that be is tbe owner of a lot upon which is a hotel; that be left open a nine-foot alleyway leading from tbe rear of bis lot and on bis own land into tbe street; that it is tbe only means of ingress and egress be has, and that it has been in constant use for twenty years; that tbe defendants have wrongfully and unlawfully closed it up by building a cement sidewalk in front of it of such height and character that be cannot cross it witb bis vehicles, etc. Tbe defendants admit that they have closed up tbe alleyway by tbe sidewalk aforesaid, but aver that they did so because it was so situated as to be a nuisance and dangerous to tbe public; they aver that they have provided plaintiff witb an entrance on tbe other side of bis hotel and between that and an adjoining hotel, about four feet of which new entrance is on plaintiff’s land. Tbe fact that tbe defendants enacted an ordinance prohibiting citizens generally from driving across tbis sidewalk at that and two other similar places does not take from plaintiff tbe right to test in a .civil action bis property rights and have removed tbe physical obstruction to their enjoyment, as well as to recover damages for their infraction. Tbe remedy by injunction is appropriate to tbe abutter in a proper case. It will lie to prevent tbe deprivation of bis right of access (Elliott Roads and Streets, sec. 709; Carter v. Chicago, 57 Ill., 283; Callaman v. Gilman, 107 N. Y., 361), and may be joined in tbe same action witb a demand for damages. Ross v. Thompson, 78 Ind., 99. Tbe right of ingress and *76 egress over one’s own land to tbe public streets and roads is an incident to ownership and constitutes a property right. In Metcalf v. Boston, 158 Mass., 285, the Court, speaking of the rights of lot-owners abutting on the streets, says: “They have a right to make for themselves driveways to the wrought part of the street in any reasonable way which does not interfere with the use of the street by the public.” The Supreme Court of Indiana treats the right of access as a property right and holds that an injunction will lie to protect it. Ross v. Thompson, 78 Ind., 91. For these reasons, we think that the complaint does state a cause of action independent of any question concerning the administration of the criminal law. But inasmuch as it appears from the record that the plaintiff has been provided with at least a temporary entrance, a few feet of which is on his own land, we see no reason why a temporary restraining order is now necessary. When the issues raised by the pleadings are passed upon and the rights of the plaintiff determined, an injunction may or may not be necessary; or in case the jury should find that the alleyway in question constituted a nuisance and was dangerous to the public, the court will consider the best means of abating or remedying it, as was done in Hyatt v. Myers, 73 N. C., 233, and Hickory v. R. R., 143 N. C., 454. The order denying the temporary restraining order is Affirmed.