McLeod v. Town of Wrightsville Beach

Seawell, J. Realizing that the crux of the present controversy lies in the question whether the City of Wrightsville has accepted or adopted the area in which the well and pump house is located as a public street, either through appropriate resolution of its governing body or acts from which such adoption might be inferred, we have endeavored as far as practicable to confine the foregoing summary of the proceedings below, and particularly the evidence, to the immediate issues. We do not consider as of controlling importance many of the objections taken on the [625] trial to tbe admission of evidence and do not discuss them in detail. They have been, however, carefully considered. While the action is captioned as an action in behalf of the public, there is no challenge to the jurisdiction of the trial court to hear the controversy, make findings of fact and conclusions of law and enter judgment thereupon. We do not find it necessary in this discussion to balance, item by item, the findings of fact with supporting evidence, because the issue is so narrow the relevancy is readily seen. And while it has been held that the appellate court is not bound by the findings of fact by the trial judge in granting or withholding an injunction, (Mullen v. Louisburg, 225 N. C. 53, 33 S. E. (2) 484; Smith v. Bank, 223 N. C. 249, 251, 25 S. E. (2) 859), we are at a loss to find any substantial reason why they should he disturbed, and are impelled to hold that the conclusions of law necessarily follow as a correct application of legal principles. From a legal point of view, as testing the validity and propriety of the instant proceeding, it seems clear to us that failing to establish their contention that the offending structure is within the public street, plaintiffs have presented no ground for injunctive interference with the city’s project. The land upon which the alleged nuisance is located does not belong to the plaintiffs nor vras it, so far as the record shows, owned by their predecessors in title. The allegations of nuisance, therefore, take on a new angle of incidence. There remains but the question raised by the plaintiffs as to the obstruction of view or outlook, and expected discomfort of noise; but we see no obstruction of a public thoroughfare. Whether upon similar allegations and proof the plaintiffs would have a legal standing in court against a private owner of the adjacent property for such s use of it, wre need not inquire. The plaintiffs are not suing a private person, but a municipality which has the power of eminent domain; and if they have suffered any loss or impairment of their property by reason of actionable nuisance their remedy is not by injunction. The judgment of the court below is Affirmed.