Opinion

Carolina Mills, Inc. v. Catawba County Board of Education

  • 27 N.C. App. 524
  • 219 S.E.2d 509
  • 1975 N.C. App. LEXIS 1891
Court
Court of Appeals of North Carolina
Filed
Nov 19, 1975
Status
Published
Author
Clark
On the bench
Brock, Clark, Hedrick
Cited by
4 cases

enforcing a restrictive covenant against condemning authority would defeat the purpose of eminent domain, but use of property — whether purchased or condemned — violating a restrictive covenant, constitutes taking and entitles an owner to compensation

How later courts described this case

  • enforcing a restrictive covenant against condemning authority would defeat the purpose of eminent domain, but use of property — whether purchased or condemned — violating a restrictive covenant, constitutes taking and entitles an owner to compensation
  • "The Board's power to purchase property . . . is tantamount to the power of eminent domain."
  • damages constitute appropriate remedy for taking of negative easements created by language of covenant

Written by the judges who cited it.

The opinion

Judge Clark

concurring:

The power of eminent domain is founded on the law of necessity and is not to be exercised arbitrarily. In my opinion if the pleadings had properly raised the issue, the plaintiffs would have the right to a judicial determination of the legal authority and necessity for the taking of their vested interests and the right to an injunction pending this determination. But the complaint alleges that the intended use of the lots may become “an annoyance or nuisance to the neighborhood” and prays that defendant be restrained from violating the restrictive *528 covenants. Under these circumstances their remedy is compensation for the taking and not restraint of the defendant in the intended use of the property.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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