No. 381.

67 S.E.2d 452 (1951)

234 N.C. 410


Supreme Court of North Carolina.

November 7, 1951.

Attorney(s) appearing for the Case

John G. Prevette, Asheboro, for plaintiff appellee.

Schoch & Schoch, High Point, Ferree, Gavin & Anderson, Asheboro, for defendants appellants.

WINBORNE, Justice.

I. At the threshold of this appeal the demurrer ore tenus comes up for consideration and decision.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law", Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also McCampbell v. Valdese Bldg. & Loan Ass'n, 231 N.C. 647, 58 S.E.2d 617, and cases there cited.

Too, the statute G.S. § 1-151 requires that in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties. And the decisions of this court, applying the provisions of this statute, hold that every reasonable intendment is to be made in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient. See King v. Motley, 233 N.C. 42, 62 S.E.2d 540.

Applying these principles to the complaint in the case in hand, we are unable to say that in no view of the case the court is without jurisdiction of the cause, or that the complaint fails to state facts sufficient to constitute a cause of action.

The contention of defendants, appellants, that since it is alleged in the complaint that the segment of the road in controversy has been abandoned by the State Highway Department, the General Statutes, Chapter 136, Article 4, vests in Clerk of Superior Court original and exclusive jurisdiction of an action to re-open it, does not follow. The statute G.S. § 136-67 defines what is a neighborhood public road, and as so defined declares that such roads shall be subject to all the provisions of G.S. § 136-68, G.S. § 136-69 and G.S. § 136-70 with respect to the alteration, extension, or discontinuance thereof, and authorizes any interested party to institute such proceeding. However, it does not appear that the allegations of the complaint bring the abandoned segment of the road in controversy within the definition. The pertinent parts of the definition read as follows: "All those portions of the public road system of the state which have not been taken over and placed under maintenance or which have been abandoned by the state highway and public works commission, but which remain open and in general use as a necessary means of ingress to and egress from the dwelling house of one or more families * * * and all other roads or streets or portions of roads or streets whatsoever outside of the boundaries of any incorporated city or town in the state which serve a public use and as a means of ingress or egress for one or more families, regardless of whether the same have ever been a portion of any state or county road system, are hereby declared to be neighborhood public roads * * *." And there is no allegation in the complaint that the abandoned portion of the road remains open and in general use "as a * * * means of ingress to and egress from the dwelling house of one or more families", or serves "a public use and as a means of ingress or egress for one or more families".

And the contention that complaint does not state a cause of action against defendants in that it is not alleged that plaintiff has a dwelling on his property without means of egress and ingress thereto, is not tenable.

It is true that there is a proviso in G.S. § 136-67 which defines what portions and segments of old roads that do not come within the definition of "neighborhood public roads", as above recited, and which provides that "the owner of the land, burdened with such portions and segments of such old road, is hereby invested with the easement of right of way for such old roads heretofore existing". The first part of the proviso reads: "that this definition of neighborhood public roads shall not be construed to embrace any street, road or driveway that serves an essentially private use, and all those portions and segments of old roads, formerly a part of the public road system, which have not been taken over and placed under maintenance and which have been abandoned by the state highway and public works commission and which do not serve as a necessary means of ingress to and egress from an occupied dwelling house are hereby specifically excluded from the definition of neighborhood public roads, and the owner * * *", etc. (as above stated).

Thus it appears that the allegations of the complaint fail to bring the abandoned segment of road in controversy within the definition of roads excluded from the definition of "neighborhood public roads" as set forth in the proviso.

But regardless of whether or not the segment of road in controversy comes within the proviso, the allegation of the complaint is that the public used the highway for a period of 28 years, or more, without interference and as a matter of right and adversely to all persons until recently, when defendants attempted to close it, and that by defendants so doing, he, plaintiff, is cut off from his farm, as aforesaid, "with no way to get to and from" it, or "to the new road built by the State Highway Commission". These allegations, admitted for the purpose of considering the demurrer, are sufficient to withstand the demurrer. Whether or not plaintiff is able to make good his allegations is not now of concern. He is entitled to an opportunity to do so. Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783. And when the facts are established, questions of law arising thereon, and bearing upon the relative rights of the parties in respect of the segment of the road in controversy, may then be determined.

II. Defendants challenge next the orders of injunction entered on the hearing on notice to show cause, etc., G.S. § 1-492, and we hold properly so, on the ground, among others, that the judge not only failed to find any facts on which to base the orders, but founded the orders solely upon the allegations of the complaint.

When a motion for an injunction is made returnable before the proper judge for a hearing, the parties may appear before him at the time and place designated, and the motion is heard upon affidavits. Both parties plaintiff and defendant, are entitled to a hearing on their respective affidavits. McIntosh's N. C. P & P, Sec. 873, p. 991. But in the present case the language appearing in the orders would seem to show that the affidavits and photographic exhibits offered by defendants were not taken into consideration.

However on appeal in injunction cases the findings of fact, if made, by the judge of the Superior Court are not conclusive and the Supreme Court may "look into and review the evidence". Still there is a presumption always that the judgment and proceedings below are correct and the burden is upon the appellant to assign and show error. Hyatt v. DeHart, 140 N.C. 270, 52 S.E. 781; Plott v. Board of Com'rs., 187 N.C. 125, 121 S.E. 190; Sineath v. Katzis, 219 N.C. 434, 14 S.E.2d 418.

Looking into and reviewing the affidavits and exhibits offered by defendants, in the present case, the purport of which is summarized in the statement of the case hereinabove set forth, there is evidence of facts which bear materially upon the questions as to whether a prohibitory injunction, and a mandatory injunction, or either, should issue, and, if the latter, in what respect.

McIntosh, in his work on North Carolina Pleading and Practice in Civil Cases, treating of these forms of injunction summarizes the law as it prevails in this State as follows: "A prohibitory injunction is one that restrains a party from doing a particular act and preserves the status quo until the rights can be determined. This has always been the most usual form and the term `injunction' carries with it the general idea of prevention * * *.

"A mandatory injunction requires the party enjoined to do a positive act, and since this may require him to destroy or remove certain property, which upon a final hearing he may be found to have the right to retain, it is not so frequently used as a temporary or preliminary order. As a rule such an order will not be made as a preliminary injunction, except where the injury is immediate, pressing, irreparable and clearly established, or the party has done a particular act in order to evade an injunction which he knew had been or would be issued. As a final decree in the case it would be issued as a writ to compel compliance in the nature of an execution * * * The mandatory injunction is distinguished from a mandamus, in that the former is an equitable remedy operating upon a private person, while the latter is a legal writ to compel the performance of an official duty." McIntosh's N. C. P & P in Civil Cases, Sec. 851, p. 972. See also Clinton-Dunn Telephone Co. v. Carolina Telephone Co., 159 N.C. 9, 74 S.E. 636; Leaksville Woolen Mills v. Spray Water Power & Land Co., 183 N.C. 511, 112 S.E. 24; Arey v. Lemons, 232 N.C. 531, 61 S.E.2d 596.

If it be that the land of plaintiff in the case in hand has not been cultivated or farmed or used in husbandry-like manner for a period of five years, and the dwelling house on it burned in 1949, and no one has since lived on the land, and the only driveway entrance to the land from the Hopewell Road was closed by plaintiff a year prior to May 1951, the date on which the affidavits were executed, and remained closed until a few days before this suit was instituted, as shown by the affidavits of defendants, and not specifically denied by plaintiff, it would not seem that the injury to plaintiff, of which he complains against defendant, is so "immediate, pressing, irreparable, and clearly established" as to justify the extraordinary equitable remedy of preliminary mandatory injunction.

Moreover, it appears from defendants' affidavits that the culverts, which the court ordered defendants to replace, were taken up by the State Highway and Public Works Commission.

Furthermore, it appears from defendants' affidavits that they take issue with plaintiff as to his contention that he is without a way of ingress to and egress from his land.

In the light of the above, this court holds that the order for mandatory injunction, from which appeal is taken, was improvidently entered, and is, therefore, set aside, and the cause remanded for further proceedings in accordance with law.



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