Carolina Mills, Inc. v. Catawba County Board of Education , 27 N.C. App. 524 ( 1975 )

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 covenants. Under these circumstances their remedy is compensation for the taking and not restraint of the defendant in the intended use of the property.