#### LEAKSVILLE COTTON MILLS v. COMMISSIONERS OF ROCKINGHAM COUNTY et al.

(Filed 25 October, 1922.)

1. Highways — County Commissioners — Notice to Owner — Principal and Agent — Roads.

One who has an agent present before the board of county commissioners resisting the relocation of a county highway upon his lands has notice, implied from the agency, of the action of the board in taking his additional lands in determining the matter contrary to his contentions.

2. Highways — County Commissioners — Discretionary Powers.

The judgment of the county commissioners in taking the land of one adjoining owner in preference to that of another in relocating and widening a highway will not be reviewed by the courts, unless bad faith or manifest abuse of discretion has been established, or it is clearly made to appear that the commissioners have acted in the promotion of some personal or private end, and not in the interest of the public.

3. Same — Injunction—Evidence.

Where the plaintiff seeks injunctive relief against the commissioners of the county for taking additional land from him in the location of a public highway, and alleges that the commissioners have acted solely in the interest of an adjoining owner, which the commissioners deny, and there is no evidence to support the plaintiff’s allegation, it is insufficient in • impeachment of the action of the board, and a permanent injunction should be denied.

4. Same — Contracts.

Where the board of county commissioners, acting within their sound discretion and for the public interest, have determined upon widening a public highway, in its relocation, so as to take in an additional width of the plaintiff’s land, injunctive relief will not be granted the plaintiff upon the ground that it had entered on a contract with the commissioners, upon a consideration that the road should be located at a certain place when there is nothing in the contract to sustain such contentions, or to limit the powers of the board accordingly.

5. Same — Surveyor—Principal and Agent.

The county engineer has no implied authority from the board of county commissioners, by virtue of his position, to bind it in the exercise of its reasonable discretion as to relocation or widening a county highway.

Appeal by plaintiff from Harding, J., at chambers, 30 March, 1922, from EocitiNGHAM.

Civil action to restrain the defendants from relocating a public road and thus taking approximately five feet of plaintiff’s property, in alleged violation of the following contract:

“'Whereas, the county of Eockingham has ordered the road from the •canal bridge at the Danville and Western Eailroad, near the Imperial *228Bank and Trust Company building, in tbe town of Spray, to Dillon’s store in said town, said road known as tbe Morgan Ford road, to be rebuilt, regraded, and pavéd witb sheet aspbalt, as per specifications of tbe county engineer; tbe said order being made upon conditions that tbe undersigned corporations, to wit, tbe Spray Water Power and Land Company and Leaksville Cotton Mills pay one-balf of tbe cost of said work, and tbe said corporations having consented and agreed to do this r

“Therefore, this agreement made and entered into this 21 October, 1921, for and in consideration of tbe foregoing premises, tbe Spray Water Power and Land Company, a corporation duly chartered, and tbe Leaksville Cotton Mills, a corporation duly chartered, do hereby contract and agree witb tbe county of Rockingham that if said county will proceed at once witb tbe regrading and paving tbe said road in tbe manner as above set forth, that they will pay one-balf of tbe cost thereof. Tbe same to be paid as called for upon tbe estimates of the county engineer as the work on said road progresses. .

Spray Water Power AND LaNd CompaNY,

By E. Y. Iiobbs, Assi. Treasurer.

Leaicsville Cotton Mills,

By E. Y. Hobbs, Asst. Treasurer.”'

Tbe road as originally located bad tbe effect of closing tbe only driveway or outlet to tbe mill property of tbe Leaksville Woolen Mills, situate on tbe opposite side of tbe road from tbe plaintiff’s property, and this was ordered to be changed on 9 November, as follows:

“At a special meeting of tbe board of county commissioners at Spray,, tbe following members present: R. B. Chance, chairman; M. L. Heiner,, James R. Martin, and R. J. Martin. It was ordered that tbe road between tbe Leaksville Cotton Mills and tbe Leaksville Woolen Mills be narrowed so as not to interfere witb the present driveway of tbe Leaks-ville Woolen Mills.”

Later, after again viewing tbe premises, tbe commissioners came to' ’ tbe conclusion that tbe road, as laid out by tbe engineer and as modified by tbe order of tbe board on 9 November, was not wide enough, either from tbe standpoint of service or safety, and at a meeting of tbe board on 5 December, 1921, tbe following resolution was passed:

“On motion of M. L. Heiner, seconded by R. J. Martin, it was ordered to make tbe street 5 feet wider opposite tbe drive of tbe Leaksville Woolen Mills, and on tbe side of tbe Leaksville Cotton Mills office in Spray, N. C.”

In order to circumvent this resolution, 0. R. Mclver, who was acting for the plaintiff in tbe matter, at an early hour on tbe morning of 6 December, 1920, constructed an embankment on tbe side of tbe Leaks-*229Tille "Woolen Mills, and this was ordered removed in the case of Woolen Mills v. Land Go., 183 N. 0., 511. See this case, also, for fuller statement of the facts.

On 6 March, 1922, the board passed a resolution ordering the contractor to go forward with the construction of the road at the point where it passes the property of the Leaksville Woolen Mills and the Leaksville Ootton Mills, and to construct it “five feet wider than the concrete just laid on the east side of said road where it passes said Leaksville Woolen Mills, beginning and ending at such point on the east side thereof as will make a proper road, and it shall be constructed on the west side thereof without interference with the driveway of the Leaksville Woolen Mills as it was when said road was first ordered built with asphalt.” This order precipitated the present suit, summons having been issued 7 March, and the plaintiff seeks to enjoin the defendants from taking its property for. the alleged reason that same would now be in violation of the above contract. The temporary restraining order was dissolved, and plaintiff appealed.

Broohs, Hines & Smith for plaintiff.

Manly, Ilendren & Womble for commissioners.

Johnston, Ivie & Trotter for construction company.

Stacy, J.,

after stating the case: The general authority of the commissioners of a county to condemn land for road purposes is found in 0. S., 3667. The plaintiff in the instant case had knowledge of the order directing the contractor to take the five feet of land in question, as its agent, 0. E. Mclver, was present at the meeting of the board on 5 December, 1921. The building of the-road, in violation of this decision of the board of county commissioners, has been properly arrested. Woolen Mills v. Land Co., 183 N. C., 511.

The judgment of the commissioners, with respect to the location and construction of the instant road, and particularly the determination of the board to take the land of the Leaksville Cotton Mills rather than close the only driveway or outlet to the property of the Leaksville Woolen Mills, will not be reviewed by the courts, unless bad faith or a manifest abuse of discretion has been established, or unless it is clearly made to appear that the commissioners have acted, not in the interest of the public, but in promotion of some personal or private end. Edwards v. Comrs., 170 N. C., 451, and cases there cited.

True, the complaint alleges that several members of the board of commissioners are acting solely in the interest of the Leaksville Woolen Mills, but this is specifically denied by the individual members of the .board, and the record is wanting in any sufficient evidence to support the *230charge. The chairman of the board, who took Mclver’s view of these matters in the case of Woolen Mills v. Land Co., supra, is now acting in entire accord with the other members of the board in the present controversy.

The above general propositions are not controverted by the plaintiff, but it says the defendants are now proceeding in violation of their contract to locate the road “as per specifications of the county engineer.” It is alleged that the location, as originally proposed, had been surveyed and staked out by the engineer at the time of the signing of the contract, and that such became a part of the inducement and consideration for its execution. This is denied by each and every member of the board of commissioners. They say there was no agreement for any particular location of the road, and that nothing was said in the negotiations pointing to this end.

But it is further alleged that the county engineer and C. R. Mclver, prior to the execution of the contract with the commissioners, had an understanding as to the precise location of the road. This was not known to the commissioners, and it is denied that the county engineer was authorized to enter into any such agreement on behalf of the county or the commissioners.

Upon the record, plaintiff has failed to make out a case calling for injunctive relief; and we think the judgment dissolving the temporary restraining order should be upheld.

Affirmed.