Hall v. City of Morganton

Annotate this Case

151 S.E.2d 201 (1966)

268 N.C. 599

Kirby HALL, Individually and as Agent for Calvin Fairchild v. CITY OF MORGANTON, Cyrus Brooks and Ben S. Whisnant.

No. 355.

Supreme Court of North Carolina.

November 30, 1966.

*202 Patton, Ervin & Starnes, by Frank C. Patton, Morganton, for plaintiff appellee.

John H. McMurray, Morganton, for defendants appellants.

HIGGINS, Justice.

This Court has allowed the plaintiff to amend the complaint by attaching as an exhibit thereto a power of attorney executed by Calvin Fairchild ratifying the bringing of this action by Kirby Hall and authorizing him to prosecute it as attorney in fact. Under the rules, therefore, this is the only question to be reviewed here: Did the plaintiff make a sufficient showing to justify the court's order continuing the temporary restraint, preserving the status quo until the final hearing? Injunctive relief is granted only when irreparable injury is real and immediate. Pee Dee Electric Membership Corp. v. Carolina Power & Light Co., 256 N.C. 56, 122 S.E.2d 761; Starbuck v. Havelock, 252 N.C. 176, 113 S.E.2d 278.

The court issued the restraining order and continued it to the hearing upon the basis of the verified complaint and the supporting affidavit of Wheeler Dale. The defendants have filed a demurrer but have not filed an answer. According to the complaint, the defendants have threatened to cut off the water supply to the Fairchild residence unless the owner switches its source of electric current from Duke Power Company to the power facilities operated by Morganton. According to Dale's affidavit, Duke owns a power easement over the owner's land to the dwelling. While Duke was supplying power, the City contracted with the owner for the tap on the City's water main. For this privilege Dale paid the City $300.00. At all times the owner has been current in the payment of his accounts. If the City fails to supply water the dwelling will be uninhabitable.

More is involved in this case than the right to require the City to serve a customer outside the City limits. Fulghum v. Selma, 238 N.C. 100, 76 S.E.2d 368. On the present showing the question is whether the City may force the home owner to switch from Duke Power to City power by a threat to sever the owner's connection with the City water system for which he paid $300.00. The court has power to restrain a municipal corporation's threatened wrongful acts. Wishart v. City of Lumberton, 254 N.C. 94, 118 S.E.2d 35.

The complaint and affidavit filed by the plaintiff furnish sufficient factual basis for Judge Froneberger's order continuing the restraint to the hearing. The order is