Duke Power Co. v. Salisbury Zoning Board of Adjustment

202 S.E.2d 607 (1974) 20 N.C. App. 730

DUKE POWER COMPANY, a Corporation, Petitioner,
v.
SALISBURY ZONING BOARD OF ADJUSTMENT et al., Respondents.

No. 7419SC91.

Court of Appeals of North Carolina.

February 20, 1974. Certiorari Allowed April 2, 1974.

William I. Ward, Jr., Charlotte, Richard R. Reamer, and Kluttz & Hamlin, by Clarence Kluttz, Salisbury, for petitioner-appellee.

Carlton, Rhodes & Thurston by Richard F. Thurston and Linda A. Thurston, Salisbury, for appellants.

Certiorari Allowed by Supreme Court April 2, 1974.

CARSON, Judge.

At common law the right to appeal was limited to parties in the action who were aggrieved by the ruling of the court. 4 Am.Jur.2d, Appeal and Error, § 173. This common law rule has been codified in North Carolina under G.S. § 1-271 which states as follows:

Who may appeal.—Any party aggrieved may appeal in the cases prescribed in this chapter. A party who cross assigns error in the grant or denial of a motion under the Rules of Civil Procedure is a party aggrieved.

While the persons complaining of the court's ruling may have been aggrieved by the proximity of their land to the proposed power line of the petitioner, it does not necessarily follow that they have the right to appeal. In addition to being aggrieved, they must have been parties to the suit from which they wish to appeal. No attempt was made to keep the complaining persons from becoming parties to the controversy. Quite to the contrary, courtesy copies of the petition for certiorari were furnished to the attorney for Thurston. The complaining persons were present at the meeting before the Board of Adjustment and had an attorney present at the Superior Court Session at which the hearing was held and the order was entered. They did not petition the court to allow them to become parties of record to the action. Since they were not parties, they have no right to appeal or otherwise complain of the ruling of the court. Siler v. Blake, 20 N.C. 90 (1838); In re Coleman, 11 N.C.App. 124, 180 S.E.2d 439 (1971). The motion to dismiss the appeal is allowed.

BROCK, C. J., and MORRIS, J., concur.