Setzer v. Annas

• Decision Date: 12 March 1975
• Docket Number: No. 84,84
• Citation: 212 S.E.2d 154,286 N.C. 534
• Court: North Carolina Supreme Court
• Parties: Joseph B. SETZER and wife, Joan Q. Setzer v. Ronnie ANNAS.

Page 154

212 S.E.2d 154

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.

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 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...