CAROLINA MILLS, INC., et al.
v.
CATAWBA COUNTY BOARD OF EDUCATION.
No. 7525DC509.
Court of Appeals of North Carolina.
November 19, 1975.*510 Cagle & Houck by Joe N. Cagle, Hickory, for plaintiffs.
Sigmon & Sigmon by W. Gene Sigmon, Newton, for defendant.
BROCK, Chief Judge.
This appeal presents the question of whether a board of education which purchases property for a valid school purpose pursuant to G.S. 115-125 can be enjoined to comply with restrictive covenants requiring *511 that the property be used exclusively for residential purposes.
In Raleigh v. Edwards, 235 N.C. 671, 71 S.E.2d 396 (1952), the City of Raleigh instituted condemnation proceedings to acquire a tract of land in a residential subdivision to serve as the site for an elevated water storage tank. The plaintiffs, adjoining property owners, brought an action to recover damages for the City's breach of restrictive covenants limiting the property to residential use. The Court held that the City's violation of the restrictive covenants constituted a taking of vested property interests for which the owners were entitled to compensation commensurate with any loss they sustained. Although the issue was not directly before the Court, it is clear that injunctive relief to enforce the covenants was not available to plaintiffs. "It is true that such other landowners may not enforce the restrictions against the condemnor, but they are nonetheless entitled to an award of compensation `where, through the exercise of the power of eminent domain, there is a taking or damaging of such property rights...' (citations omitted)" (emphasis supplied) Raleigh v. Edwards, supra. Indeed, the issuance of an injunction to compel a condemning authority to comply with restrictive covenants would defy the concept of eminent domain. By definition eminent domain represents the power of the state to acquire all private property rights for a public purpose, subject only to the requirement of fair compensation. This power, when exercised properly according to law, cannot be restricted by injunctive relief to enforce covenants binding on the condemned property. As a general rule the party whose property rights are damaged or taken by the condemning authority is entitled to an action to recover damages.
Plaintiffs attempt to distinguish the present case from Raleigh v. Edwards by focusing on the manner in which the property was acquired by the Board. Here, the Board acquired the property by purchase rather than by condemnation; as a result, plaintiffs argue that the Board is subject to the restrictive covenants as a private purchaser would be. This argument fails to grasp the full legal effect of the Board's action. Title to the property was purchased by the Board pursuant to G.S. 115-125, which authorizes the Board to acquire property for school sites and related school purposes by purchase, gift, and, if necessary, by condemnation:
"§ 115-125. Acquisition of sites. County and city boards of education may acquire suitable sites for schoolhouses or other school facilities either within or without the administrative unit; but no school may be operated by an administrative unit outside its own boundaries, although other school facilities such as repair shops, may be operated outside the boundaries of the administrative unit. Whenever any such board is unable to acquire or enlarge a suitable site or right-of-way for a school, school building, school bus garage or for a parking area or access road suitable for school buses or for other school facilities by gift or purchase, condemnation proceedings to acquire same may be instituted by such board under the provisions of Article 2, Chapter 40 of the General Statutes, and the determination of the county or city board of education of the land necessary for such purposes shall be conclusive; provided that not more than a total of 50 acres shall be acquired by condemnation for any one site for a schoolhouse or other school facility as aforesaid, (citations omitted)."
The Board's power to purchase property under this section is tantamount to the power of eminent domain. To the extent that the Board's use violates and impairs the value of restrictive covenants running with the property, there is a taking whether the property is purchased or condemned, and the owners of the easements created by covenant are entitled to compensation. The appropriate remedy for plaintiffs in this case is an action to recover damages on the theory that the Board has taken their property *512 rights. Injunctive relief to enforce plaintiffs' negative easements in the property acquired by the Board is not warranted on the basis of the illusory distinction between the authority to purchase and the authority to condemn prescribed by G.S. 115-125.
Plaintiffs' assignments of error are overruled, and the 24 April 1975 order is
Affirmed.
HEDRICK, J., concurs.
CLARK, Judge (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 covenants. Under these circumstances their remedy is compensation for the taking and not restraint of the defendant in the intended use of the property.