Town of Fremont v. BakerAnnotate this Case
72 S.E.2d 666 (1952)
236 N.C. 253
TOWN OF FREMONT v. BAKER et al.
Supreme Court of North Carolina.
October 8, 1952.
*667 B. F. Aycock, Fremont, and Dees & Dees, Goldsboro, for plaintiff-appellant.
J. Faison Thomson and J. Faison Thomson, Jr., Goldsboro, for defendant-appellees.
While in appeals of this character from an order granting or denying injunctive relief, the findings of fact made by the court below are not conclusive and binding on this Court, a careful examination of the record discloses no reason why we should at this stage of the proceeding undertake to revise the facts found by the court below. Smith v. Bank, 223 N.C. 249, 25 S.E.2d 859; Gaines v. Long Manufacturing Co., 234 N. C. 340, 67 S.E.2d 350. The essential facts on the rule to show cause sufficiently appear in the findings made by the court below.
The plaintiff stressfully contends that it has acquired by prescription a general alleyway across the land of defendants, which alley, it contends, extends from Railroad Street to Sycamore Street over and along the vacant property to the rear of *668 the buildings fronting on Main Street. We may concede, without deciding, that it offered some evidence to this effect. Even so, on this record plaintiff's contention is without merit. The complaint does not sufficiently allege the existence of a public alleyway. Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153; Cahoon v. Roughton, 215 N.C. 116, 1 S.E.2d 362; Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484; Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906; Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371; Annotation 143 A.L.R. 1403. And proof without allegation is as unavailing as allegation without proof. Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147; Martin Flying Service v. Martin, 233 N.C. 17, 62 S.E.2d 528; Bowen v. Darden, 233 N.C. 443, 64 S.E.2d 285.
Before defendants began the erection of the addition to their building, the rear of their lot was vacant for a distance of thirtytwo feet. Does plaintiff claim an alley thirty-two feet in width? If not, where does the alley cross the same? How wide is the easement and what are its boundaries? As to these essentials of a public way the complaint contains no averment.
In the complaint the plaintiff's right to require a passageway from Railroad Street to Sycamore Street to be kept open to the end it may have free and unobstructed access to its water and sewer mains for the purpose of maintenance and repair is predicated on an alleged agreement made between the plaintiff and the property owners at the time the mains were installed. Thus the plaintiff asserts an easement by dedication. Should the temporary restraining order be continued to the final hearing so as to maintain the status quo until the issues raised by the pleadings in this respect are finally determined? This is the real question posed for decision.
Ordinarily a temporary restraining order should be continued until the final hearing when it is made to appear, prima facie, that the plaintiff will be able to maintain his primary equity and there is reasonable apprehension of irreparable loss unless it remains in force, or it appears to be reasonably necessary to protect plaintiff's rights until the controversy between the parties can be determined. Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Smith v. Bank, 223 N.C. 249, 25 S.E.2d 859.
When the main purpose of an action is to obtain a permanent injunction and the evidence presents a serious issue as to the existence of facts which, if established, would entitle the plaintiff to the relief demanded, Springs v. Atlantic Refining Co., 205 N.C. 444, 171 S.E. 635, 110 A.L.R. 474; Bailey v. Bryson, 214 N.C. 212, 198 S.E. 622, or when it is necessary to protect the subject of the action against destruction or wrongful injury until the legal controversy has been settled, Lawhon v. McArthur, 213 N.C. 260, 195 S.E. 786; Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143, the usual practice is to continue the temporary restraining order to the hearing.
Conversely, the order will not be continued when no issues of fact are raised, Cox v. Kinston, 217 N.C. 391, 8 S.E.2d 252, or when a permanent injunction is the only relief sought and no probable equity is made to appear, Teer v. Jordan, 232 N.C. 48, 59 S.E.2d 359; Mosteller v. Southern R. R. Co., 220 N.C. 275, 17 S.E.2d 133; Cahoon v. Board Com'rs of Hyde County, 207 N.C. 48, 175 S.E. 846, or when plaintiff seeks to restrain a consummated wrong, Jackson v. Jernigan, supra; Branch v. Board of Education, 230 N.C. 505, 53 S.E.2d 455; Groves v. McDonald, 223 N.C. 150, 25 S.E.2d 387.
Nor may a restraining order be used as an instrument to settle a dispute as to the possession of realty or to dispossess one for the benefit of another. Armstrong v. Armstrong, 230 N.C. 201, 52 S.E.2d 362; Young v. Pittman, 224 N.C. 175, 29 S.E.2d 551.
The plaintiff did not institute this action until after defendants had entered upon and, by the erection of the walls to their annex, substantially obstructed the alleged easement, thereby effectively preventing ingress and egress over and across their land along the course of the water and sewer mains. Therefore a continuance of the restraining order would not serve to maintain the original status quo without a further order summarily ousting defendants and requiring them to remove the walls *669 they have erecteda remedy to which plaintiff is not entitled at this stage of the proceeding.
Plaintiff may be entitled to the free and unobstructed access to its mains as an essential part of an easement granted or dedicated by the property owners. This we may concede. Even so, it has failed to show that there is any immediate danger of irreparable damage or that its rights will be lost or materially impaired pending the trial unless the restraining order is continued to the hearing. Branch v. Board of Education, supra.
It follows that plaintiff has failed to show harmful error in the order of the court below dissolving the temporary restraining order.
But the court below likewise dismissed the action at the cost of the plaintiff. In this there was error.
The action came on for hearing at term. Even so, it was before the court on the rule to show cause. There is nothing in the record to indicate that it was calendared for hearing on the merits. The record fails to disclose a waiver of trial by jury. And plaintiff asserts that it did not agree to submit the case to the judge for any purpose other than to decide whether the temporary restraining order should be continued to the hearing.
The stipulations of counsel as recited in the judgment are somewhat ambiguous and might be held sufficient to constitute a submission of the whole controversy to the judge to find the facts and render judgment on the merits in accord with the facts found. When, however, the agreement is construed in the light of the record and the position plaintiff now assumes, it can mean nothing more than a stipulation that the court should consider the affidavits, find the facts "and enter judgment out of term * * * as should appear just and proper" on the interlocutory motion.
Injunctive relief is not the sole objective of plaintiff's action. It is ancillary to its main cause of action. Its ownership of an easement over and across the lands of defendants and other property owners along the line of its water and sewer mains and its rights incident thereto have not been adjudicated so as to become a matter of public record. It seeks a judgment in this action decreeing that it is the owner, by dedication, of a right of way over and across the land of defendants for the purpose of maintaining and repairing its said mains with the right to keep said way free of any obstruction which would interfere with or impede its free access thereto. Defendants deny the existence of the right of way asserted by plaintiff. Thus there are issues of fact to be determined in a trial by jury. This being true, the court was without jurisdiction to dismiss the action. Groves v. McDonald, supra; Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349; Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53.
It is true the court found as a fact that plaintiff has acquired an easement across the land of defendants which "carries with it the ordinary privileges incident to the maintenance and repair of Water & Sewage Systems, and the defendants have no right to interfere in any way with the exercise of such rights", and there is no exception to such finding. But this finding does not serve to protect plaintiff or judicially establish its easement, for the findings of the judge made at a preliminary hearing such as the one here involved are not binding on the court or the parties at the hearing on the merits. Sineath v. Katzis, 219 N.C. 434, 14 S.E.2d 418; Branch v. Board of Education, supra.
At the time of the hearing a demurrer to the complaint for that it fails to state a cause of action was pending. There is nothing in the record to indicate that the court below considered the same. Nor does it appear that the action was dismissed on the grounds stated in the demurrer. Yet the demurrer appears in the record and counsel referred to it in the oral argument. We take note thereof merely to forestall any suggestion that we have overlooked this phase of the case.
That we sustain the judgment dismissing the temporary restraining order does not constitute a license for defendants to complete the construction of the annex to their building. They are now fully advised of *670 the rights plaintiff is asserting and will proceed at their own risk.
So much of the judgment as undertakes to dismiss the action is vacated and the cause is remanded with direction that it be reinstated upon the civil issue docket for trial of the issues raised by the pleadings. As so modified, the judgment entered in the court below is affirmed.
Modified and affirmed.