No. 8019SC351.

271 S.E.2d 402 (1980)


Court of Appeals of North Carolina.

November 4, 1980.

Attorney(s) appearing for the Case

Williams, Willeford, Boger, Grady & Davis by Samuel F. Davis, Jr., and John Hugh Williams, Concord, for plaintiff-appellee.

Hartsell, Hartsell & Mills by William L. Mills, Jr., Fletcher L. Hartsell, Jr., and William L. Mills, III, Concord, for defendants-appellants.


Defendants argue that the trial court erred in entering the preliminary injunction. Injunction is an equitable remedy exercised in personam and will be granted only when irreparable injury is both real and immediate. Membership Corp. v. Light Co., 256 N.C. 56, 122 S.E.2d 761 (1961). Where there is a full, complete and adequate remedy at law, the equitable remedy of injunction will not lie. Durham v. Public Service Co., 257 N.C. 546, 126 S.E.2d 315 (1962); Whitford v. Bank, 207 N.C. 229, 176 S.E. 740 (1934). In Durham, the Supreme Court held it was error to enjoin the Public Service Company from collecting increased rates for natural gas while the petition for the increased rates was pending. Customers of the gas company in the city of Durham could sue for return of any excess payments if the rate was not approved.

The relief ordered by the court in this case is a mandatory injunction, requiring defendants to pay the determined arrearages and to continue payment of bills for water and sewage services in the future. Ordinarily, a mandatory injunction will not issue except where the threatened injury is immediate, pressing, irreparable and clearly established. Highway Com. v. Brown, 238 N.C. 293, 77 S.E.2d 780 (1953). In order for a preliminary mandatory injunction to be issued, there must generally be a clear showing of substantial injury to plaintiff if the existing status is allowed to continue till final hearing. Lloyd v. Babb, 296 N.C. 416, 251 S.E.2d 843 (1979).

In Clinard v. Lambeth, 234 N.C. 410, 418, 67 S.E.2d 452, 458 (1951), we find:

"A mandatory injunction requires the party enjoined to do a positive act, and since this may require him to destroy or remove certain property, which upon a final hearing he may be found to have the right to retain, it is not so frequently used as a temporary or preliminary order. As a rule such an order will not be made as a preliminary injunction, except where the injury is immediate, pressing, irreparable and clearly established, or the party has done a particular act in order to evade an injunction which he knew had been or would be issued. As a final decree in the case it would be issued as a writ to compel compliance in the nature of an execution ... The mandatory injunction is distinguished from a mandamus, in that the former is an equitable remedy operating upon a private person, while the latter is a legal writ to compel the performance of an official duty." McIntosh's N.C.P. & P. in Civil Cases, Sec. 851, p. 972.

An injury is considered irreparable when money alone cannot compensate for it. Gause v. Perkins, 56 N.C. 177 (1857); Frink v. Board of Transportation, 27 N.C. App. 207, 218 S.E.2d 713 (1975).

Applying these rules of law to this case, we do not find the injuries plaintiff complains of to be so pressing, immediate, irreparable and clearly established as to justify the extraordinary equitable remedy of a preliminary mandatory injunction. If plaintiff is successful in its suit, it can be fully compensated by money damages. We note that plaintiff has a right under its contract with Parkwood to discontinue supplying water to Parkwood upon nonpayment of water or sewage charges. Plaintiff has elected to waive this right, unless sanctioned by the court, for the general welfare of the people involved, a laudable action on its part. However, it cannot by waiving a legal right create a condition of irreparable harm for the purpose of procuring the issuance of a mandatory injunction.

Plaintiff has the burden of establishing the necessary preliminary equities for the extension of this equitable relief. Herff Jones Co. v. Allegood, 35 N.C. App. 475, 241 S.E.2d 700 (1978). The facts found by the trial court do not support its conclusion of irreparable injury to plaintiff. The trial court erred in issuing the preliminary mandatory injunction.

That portion of the trial court's order making Royal Oaks Sanitary District an additional party to the action is affirmed. The pleadings raise a genuine controversy between Royal Oaks and Parkwood which cannot be conclusively resolved without Royal Oaks as a party. N.C.Gen.Stat. 1A-1, Rule 19(b).

Likewise, we affirm that portion of the court's order requiring plaintiff to continue furnishing water and sewage services to defendants pending the final determination of the action. Plaintiff has judicially stipulated that the interruption of these services by plaintiff would be hazardous to the health of the public and constitute irreparable harm to defendants and their customers.

That portion of the order filed 25 January 1980, in the nature of a preliminary mandatory injunction, requiring defendants to pay the arrearages for past sewage and water charges and ordering them to continue paying for such services in the future, is vacated. The remainder of the order is affirmed and the cause is remanded to the Superior Court of Cabarrus County.

In our discretion we order the costs of the appeal to be taxed equally between plaintiff and defendants. Rule 35(a), N.C.R. App.Proc.

Vacated in part and affirmed in part.



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