Young v. Pittman

• Decision Date: 29 March 1944
• Docket Number: 242.
• Citation: 29 S.E.2d 551,224 N.C. 175
• Parties: YOUNG v. PITTMAN et ux.
• Court: North Carolina Supreme Court

29 S.E.2d 551

224 N.C. 175

YOUNG v. PITTMAN et ux.

No. 242.

Supreme Court of North Carolina

March 29, 1944

A temporary restraining order was continued to the hearing restraining defendants from interfering with plaintiff's mining for mica and feldspar in certain lands with restrictions upon plaintiff's use of explosives near defendants' home.

Defendants appealed from the order continuing the restraining order. Plaintiff appealed from so much of the order as imposed restriction on his mining operations.

J V. Bowers, of Newland, for plaintiff.

W C. Berry, of Bakersville, and L. S. Brassfield, of Releigh, for defendants.

Defendants' Appeal.

DEVIN Justice.

The defendants base their appeal from the order continuing the temporary restraining order to the hearing upon the ground that the title to the mineral rights claimed by plaintiff in the described lands was in dispute, and that the ancillary remedy of injunction properly would not be available until final determination of the issues of fact.

Ordinarily a court of equity will not interfere by injunction to determine a disputed question of title to land, nor undertake to dispossess one party for the benefit of another, but rather will leave the controverted issues of fact to be decided in an action at law. Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801; 26 A.J. 322; 32 C.J. 26, 134. But when equity has been invoked by allegations of continuous trespass or wrongful interference with present right of possession, under circumstances permitting the inference of inadequate remedy at law, or other ground of equitable jurisdiction, the court may proceed to give relief by temporary restraining order, pending the action, with such reasonable restrictions as the exigencies of the case may require. Pomeroy Eq.Jur., 5th Ed., sec. 252. When relief is sought against a continuing trespass, a restraining order may properly issue without allegation of insolvency, G.S.§ 1-486; Cobb v. Atlantic Coast Line R. Co., 172 N.C. 58, 89 S.E. 807; and this ancillary remedy may be available in an action where the title to land is at issue, Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143, but may not be used as an instrument to settle a dispute as to the possession, or to effect an ouster, Jackson v. Jernigan, supra. Where a continuous trespass is alleged and no harm can result, the court may continue the restraining order until the facts can be determined. Norfolk Southern R. Co. v. Rapid Transit Co., 195 N.C. 305, 141 S.E. 882; Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625.

The power of the court to restrain a continuing trespass, in proper case, has been upheld in other jurisdictions. United Fuel Gas Co. v. Townsend, 104 W.Va. 279, 139 S.E. 856; Union Cent. Life Ins. Co. v. Audet, 94 Mont. 79, 21 P.2d 53, 92 A.L.R. 571; St. Louis Mining & Milling Co. v. Montana Mining Co., C.C., 58 F. 129. Numerous case on this point are cited in annotations in 32 A.L.R. 464, 546, and 92 A.L.R. 578. A fortiori is this principle applicable when substantial evidence of title or possession on the part of the alleged trespasser is lacking and the plaintiff shows a prima facie title.

While the court below made no specific findings of fact, in the absence of request, it appears from the pleadings and affidavits set out in the record that there was evidence to support the ruling that the temporary restraining order should be continued, pending the final determination of the issues raised by the pleadings. The surface and mineral rights in the land had been, by deed or reservation segregated. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182; Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249. The plaintiff, claiming under a mining lease from E. C. Guy and D. T. Vance for the minerals and mineral rights in and upon the land, showed a prima facie title in his lessors. This chain of title was the same as that referred to in Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117. The defendants, owners of the surface, and alleging title to the minerals, refused to permit plaintiff to mine for mica and feldspar. However, the...