Setzer v. Annas

212 S.E.2d 154 (1975)

286 N.C. 534

Joseph B. SETZER and wife, Joan Q. Setzer v. Ronnie ANNAS.

No. 84.

Supreme Court of North Carolina.

March 12, 1975.

*156 Fate J. Beal and Dickson Whisnant, Lenoir, for plaintiff appellees.

Wilson, Palmer & Simmons, Lenoir, for defendant appellant.

SHARP, Chief Justice:

The Court of Appeals held defendant was not deprived of any substantial right by the preliminary injunction of 19 September 1973 and therefore had no right under G.S. § 1-277 to appeal. Under G.S. § 1A-1, Rule 65, the term preliminary injunction refers to an interlocutory injunction issued after notice and hearing which restrains a party pending trial on the merits.

Ordinarily, to justify the issuance of a preliminary injunction it must be made to appear (1) there is probable cause that plaintiff will be able to establish the right he asserts, and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiffs' rights during the litigation. Edmonds v. Hall, 236 N.C. 153, 156, 72 S.E.2d 221, 223 (1952); Conference v. Creech and Teasley v. Creech and Miles, 256 N.C. 128, 139, 123 S.E.2d 619, 626 (1962).

The purpose of a preliminary injunction is to preserve the status quo pending trial on the merits. Huskins v. Hospital, 238 N.C. 357, 360, 78 S.E.2d 116, 119 (1953).

At the hearing on 17 September 1973 the burden was on plaintiffs to establish their right to a preliminary injunction. G.S. § 1A-1, Rule 65(b); Board of Elders v. Jones, 273 N.C. 174, 182, 159 S.E.2d 545, 550 (1968).

The majority opinion of the Court of Appeals sets forth in general terms the gist of the evidence offered by plaintiffs and by defendant. Specific evidential facts are set forth in the dissenting opinion.

On appeal from the order of a superior court judge granting or refusing a preliminary injunction the Supreme Court is not bound by the findings of fact of the *157 hearing judge but may review and weigh the evidence and find the facts for itself. Huskins v. Hospital, supra, 238 N.C. at 362, 78 S.E.2d at 121; Conference v. Creech and Teasley v. Creech and Miles, supra 256 N.C. at 140, 123 S.E.2d at 626-627. A fortiori, the Supreme Court may make its own findings of fact when, as here, neither the hearing judge nor the Court of Appeals made any findings of fact.

The evidence before the hearing judge strongly supports a finding that the portion of defendant's property within the heavy black lines on Defendant's Exhibit No. 1 was enclosed by fence, and that gates of some type had been erected and were maintained thereon at the points indicated by the letters A and B, on and prior to 28 April 1972; that plaintiffs had knowledge of these conditions; and that these conditions continued without substantial change until the service on defendant of the ex parte temporary restraining order of 5 September 1973. For present purposes, this Court so finds.

As noted in plaintiffs' brief in the Court of Appeals, evidence before the hearing judge "showed that road had been in existence and used as ingress and egress to property of plaintiffs and their predecessors in title since about 1887 and that fences and gates were in place prior to execution by defendant of deed of right-of-way."

Plaintiffs alleged defendant severely hindered their use of the right-of-way by the two gates. Plaintiffs contend the easement conveyed by deed of 28 April 1972 vested in them the right to use the "existing roadway" without any interference by fence, gates or otherwise. Seemingly, the hearing judge and the Court of Appeals based decision on this view. Unquestionably, unequivocal acceptance of this view would require dismissal of the appeal on the ground it was frivolous.

However, the crucial question is whether defendant has a legal right to continue to enclose the portion of his property within the heavy black lines on Defendant's Exhibit No. 1 and to maintain gates at A and B. If defendant has such legal right, the preliminary injunction of 19 September 1973 deprived him of a valuable property right during the pendency of the litigation.

Defendant does not challenge plaintiffs' right to use the "existing roadway" as a means of ingress and egress; however, he denies plaintiffs' right to require him to remove the gates at A and B and thereby deprive him of his right to fence his land.

In 25 Am.Jur.2d, Easements and Licenses § 91 (1966), the author states: "Generally, the grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from having them; unless it is expressly stipulated that the way shall be an open one or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way if they are constructed so as not to interfere unreasonably with the right of passage. In the absence of an express reservation of such right, however, it is the general rule that whether he may erect and maintain gates, bars, or fences across and along the easement of way depends on the intention of the parties connected with the original creation of the easement, as shown by the circumstances of the case, the nature and situation of the property subject to the easement, and the manner in which the way has been used and occupied. This is a question of fact and is to be determined as such." Accord, 28 C.J.S. Easements § 98b (1941). Relevant decisions of this Court include Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906 (1944), and Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242 (1955).

A preliminary injunction should not be granted if a serious question exists in respect of the defendant's right to do what the plaintiffs seek to restrain and the *158 granting thereof would work greater injury to the defendant than is reasonably necessary for the protection pendente lite of the plaintiffs' rights. Huskins v. Hospital, supra, 238 N.C. at 361, 78 S.E.2d at 120; Board of Elders v. Jones, supra, 273 N.C. at 182, 159 S.E.2d at 551-552. Where a serious question exists the hearing judge considers the relative conveniences and inconveniences of the parties in determining the propriety of a preliminary injunction and the terms thereof if granted.

The crucial question, whether defendant has a legal right to establish and maintain gates at A and B and, if so, the kind of gates which would be reasonably appropriate, has not been discussed in any of the briefs. Hence, we make no definitive decision in respect thereof. Evidence at trial may bear significantly upon the ultimate decision of this question. For the present, it is sufficient to say it was error to grant the preliminary injunction on the premise that plaintiffs had an unqualified right to the use of the "existing roadway" without obstruction by fence, gates or otherwise. We hold that, in failing to consider the crucial question in respect of defendant's legal right to enclose his land by fence and to place gates at A and B, the hearing judge based his decision upon a misapprehension of the applicable law.

Although plaintiffs and defendant testified at the hearing on 17 September 1973, no testimony was offered pertinent to the portion of the temporary injunction relating to assault and the bulldozing of property along the boundary lines.

We have not overlooked appellant's contention that the preliminary injunction is deficient in that it does not meet the requirements of Rule 65(d) that every injunction or restraining order "shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined or restrained; . . .." However, we deem it unnecessary to discuss the legal effect of the deficiencies in Judge Fall's order granting the preliminary injunction since it is being vacated on another ground.

The decision of the Court of Appeals is reversed, and the cause is remanded to that court with the direction to vacate the preliminary injunction of 19 September 1973 (miscalled temporary injunction in Judge Fall's order) and remand the cause to the Superior Court for a de novo hearing on plaintiffs' motion for a preliminary injunction. Obviously, the necessity for such further hearing may be avoided by prompt trial on the merits.

Reversed and Remanded.

COPELAND and EXUM, JJ., did not participate in the hearing or decision of this case.

HUSKINS, J., dissents.

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