#### G. W. CRAWFORD v. TOWN OF MARION and H. W. DYSART et al., Aldermen thereof.

(Filed 20 December, 1910.)

1. Cities and Towns — Ordinance—Nuisance—Alleyway—Access to Property — Procedure.

Tbe defendant town, by an ordinance criminal in its nature, declared plaintiff’s alleyway a nuisance and dangerous to the public, and closed it up. Plaintiff brings his action for damages and mandamus and injunction, on the ground that he had been deprived of access to his property: Held, the action was not to enjoin the enforcement of the criminal law, but to determine and enforce plaintiff’s property rights, leaving open to tho defendant the right to prosecute him under the ordinance.

2. Cities and Towns — Streets—Adjoining Owner — Access—Injunction — Damages—Procedure.

The right of ingress and egress over one’s own land to and from a public street is an incident to ownership and constitutes a property right; and an injunction will lie against a town to prevent its depriving an abutting owner to a street of access to his land, and may be joined in the same action with demand for damages.

3. Cities and Towns — Streets—Adjoining Owner — Access — Procedure.

It appears in this case that the plaintiff has been provided with a temporary entrance to his land, and a temporary order restraining the defendant from closing the one complained of is unnecessary and will not be granted. If it should be finally deter*74mined that the alleyway, the subject of the action, is dangerous to the public, or a nuisance, the court will consider the best means of abating or remedying it.

Civil action pending in tbe Superior Court of McDowell County, and beard at chambers on 28 October, 1910, before bis Honor, Webb, J., upon motion for a restraining order until tbe final bearing to prevent tbe defendants from closing up and obstructing an alleyway leading into plaintiff’s property, whereby be has ingress and egress to tbe public street of tbe town of Marion. His Honor made this order:

“It appearing from said affidavits that questions of fact arise as to whether or not plaintiff has sustained or is now sustaining injury by reason of tbe closing up of said alleyway by tbe said town of Marion, and tbe court being of tbe opinion that a writ of mandamus should not be issued, nor restraining order be issued until such facts as arise upon tbe affidavits are passed upon by a jury, it is, therefore, ordered by tbe court that a writ of mandamus asked for by tbe plaintiff be not granted at this time, and that a request for restraining order be also refused at this time. It is further ordered by tbe court, that this cause be stated upon tbe trial docket of tbe Superior Court of McDowell County, to be tried at tbe next term of said court, or such action be taken as tbe judge presiding may think legal and advisable.”

Tbe plaintiff appealed.

McOaM & Lisenbee and W. T. Morgan for plaintiff.

Hudgins, Watson & Johnston for defendants.

BeowN, J.

It was contended upon the argument that this action cannot be maintained and should be dismissed, as its sole purpose is to prohibit by injunction the prosecution of the plaintiff under an ordinance of the town, criminal in its nature, and that tbe principle settled by the cases of Wardens v. Comrs., 109 N. C., 21; Cohen v. Comrs., 77 N. C., 2, and Paul v. Washington, 134 N. C., 379, applies.

■We recognize and reaffirm tbe authority of those cases in holding that a court of equity will not enjoin tbe enforcement *75of a criminal ordinance or statute, but will leave tbe party to make bis defense at law wben be is arrested and charged witb tbe crime. But tbis action does not seek to enjoin tbe enforcement of tbe criminal law, as was tbe case in tbe eases cited. If tbe authorities charged witb its enforcement think that plaintiff has violated tbe criminal law, they have tbe right to prosecute him in tbe criminal courts, notwithstanding tbe pen-dency of tbis action, which is brought solely for tbe purpose of determining and enforcing certain property rights of tbe plaintiff, and in tbis respect tbe case differs essentially from those cited.

Tbe plaintiff alleges that be is tbe owner of a lot upon which is a hotel; that be left open a nine-foot alleyway leading from tbe rear of bis lot and on bis own land into tbe street; that it is tbe only means of ingress and egress be has, and that it has been in constant use for twenty years; that tbe defendants have wrongfully and unlawfully closed it up by building a cement sidewalk in front of it of such height and character that be cannot cross it witb bis vehicles, etc.

Tbe defendants admit that they have closed up tbe alleyway by tbe sidewalk aforesaid, but aver that they did so because it was so situated as to be a nuisance and dangerous to tbe public; they aver that they have provided plaintiff witb an entrance on tbe other side of bis hotel and between that and an adjoining hotel, about four feet of which new entrance is on plaintiff’s land.

Tbe fact that tbe defendants enacted an ordinance prohibiting citizens generally from driving across tbis sidewalk at that and two other similar places does not take from plaintiff tbe right to test in a .civil action bis property rights and have removed tbe physical obstruction to their enjoyment, as well as to recover damages for their infraction.

Tbe remedy by injunction is appropriate to tbe abutter in a proper case. It will lie to prevent tbe deprivation of bis right of access (Elliott Roads and Streets, sec. 709; Carter v. Chicago, 57 Ill., 283; Callaman v. Gilman, 107 N. Y., 361), and may be joined in tbe same action witb a demand for damages. Ross v. Thompson, 78 Ind., 99. Tbe right of ingress and *76egress over one’s own land to tbe public streets and roads is an incident to ownership and constitutes a property right.

In Metcalf v. Boston, 158 Mass., 285, the Court, speaking of the rights of lot-owners abutting on the streets, says: “They have a right to make for themselves driveways to the wrought part of the street in any reasonable way which does not interfere with the use of the street by the public.” The Supreme Court of Indiana treats the right of access as a property right and holds that an injunction will lie to protect it. Ross v. Thompson, 78 Ind., 91.

For these reasons, we think that the complaint does state a cause of action independent of any question concerning the administration of the criminal law. But inasmuch as it appears from the record that the plaintiff has been provided with at least a temporary entrance, a few feet of which is on his own land, we see no reason why a temporary restraining order is now necessary.

When the issues raised by the pleadings are passed upon and the rights of the plaintiff determined, an injunction may or may not be necessary; or in case the jury should find that the alleyway in question constituted a nuisance and was dangerous to the public, the court will consider the best means of abating or remedying it, as was done in Hyatt v. Myers, 73 N. C., 233, and Hickory v. R. R., 143 N. C., 454. The order denying the temporary restraining order is

Affirmed.