No. 171.

78 S.E.2d 319 (1953)

238 N.C. 500


Supreme Court of North Carolina.

November 4, 1953.

Attorney(s) appearing for the Case

Monroe M. Redden and Monroe M. Redden, Jr., Hendersonville, N. C., for plaintiff, appellant.

Harkins, Van Winkle, Walton & Buck, Asheville, for defendant, appellee.

DENNY, Justice.

The court below found no facts and it does not appear that it was requested to do so. Therefore, the ground upon which it exercised its discretionary power to dissolve the temporary restraining order is not disclosed.

Ordinarily, a temporary restraining order will be continued to the hearing if there is "probable cause for supposing that the plaintiff will be able to maintain his primary equity, and there is a reasonable apprehension of irreparable loss unless it remains in force, or if, in the opinion of the court, it appears reasonably necessary to protect the plaintiff's right until the controversy between him and the defendant can be determined." Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80, 82; Seip v. Wright, 173 N.C. 14, 91 S.E. 359; Boushiar v. Willis, 207 N.C. 511, 177 S.E. 632; Porter v. Jefferson Standard Life Insurance Co., 207 N.C. 646, 178 S.E. 223; Hare v. Hare, 207 N.C. 849, 178 S.E. 545; Little v. Wachovia Bank & Trust Co., 208 N.C. 726, 182 S.E. 491; Bailey v. Bryson, 214 N.C. 212, 198 S.E. 622; Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383.

Likewise, when a continuing trespass is sought to be enjoined and the facts are in dispute and can be determined only by a jury, the courts will ordinarily continue the cause to the hearing. Norfolk Southern R. Co. v. Rapid Transit Co., 195 N.C. 305, 141 S.E. 882. Even so, "whether the Court will dissolve an injunction on hearing the answer only or will order the bill to stand over for proofs, much must depend upon the sound discretion of the judge who is to decide the question." James v. Lemly, 37 N.C. 278; McCorkle v. Brem, 76 N.C. 407; Cobb v. Clegg, supra.

In Lewis v. Roper Lumber Co., 99 N.C. 11, 5 S.E. 19, 21; the defendant was engaged in the manufacture of lumber. The plaintiff obtained an injunction restraining the defendant from cutting timber on certain lands, the title to which was claimed by both parties. Upon appeal, the Court said: "The business is a legitimate one, and ought not to be arrested; especially if this can be avoided consistently with the rights of the plaintiff. Indeed, it is against the policy of the law to restrain industries and useful enterprises. It ought not to be done unless in extreme cases, certainly when it may be avoided." Hurwitz v. Carolina Sand & Gravel Co., 189 N.C. 1, 126 S.E. 171; Tobacco Growers' Co-Op Ass'n v. Bland, 187 N.C. 356, 121 S.E. 636; Stewart v. Munger & Bennett, 174 N.C. 402, 93 S.E. 927; John L. Roper Lumber Co. v. Wallace, 93 N.C. 22.

Bynum, J., in speaking for the Court in Perry v. Michaux, 79 N.C. 94, said: "If upon the hearing of an answer the statements are such as to leave upon the mind of the Court a reasonable doubt whether the plaintiff's equity is sufficiently negatived, the injunction will not be dissolved, but be continued to the hearing. * * * But it is also a well settled rule that when by the answer the plaintiff's whole equity is denied, and the statement in the answer is credible and exhibits no attempt to evade the material charges in the complaint, an injunction on motion will be dissolved." Riggsbee v. Town of Durham, 94 N.C. 800; Tobacco Growers' Co-Op Ass'n v. L. Harvey & Son Co., 189 N.C. 494, 127 S.E. 545, 47 A.L.R. 928.

In the case of Tobacco Growers' Co-Op Ass'n v. Bland, supra [187 N.C. 356, 121 S.E. 639] this Court quoted with approval from the opinion in American Smelting & Refining Co v. Godfrey, 8 Cir., 158 F. 225, 14 Ann.Cas. 8, the following: "It may be stated as a general rule that in determining whether to grant an injunction it is the duty of the court to consider the inconvenience and damage that will result to the defendant, as well as the benefit that will accrue to the complainant, by the will accrue to the complainant, by the granting of the writ. * * * Upon balancing the conveniences, if it appears that the injunction would be productive of greater injury than would result from its denial it should not be granted." Huskins v. Yancey Hospital, N.Car., 78 S.E.2d 116. Naturally, this same reasoning would apply in determining whether or not a temporary restraining order should be continued to the hearing. We presume the court below in exercising its discretion took all these factors into consideration; therefore, we will not disturb its ruling. Neither are we inadvertent to the fact that we are not bound by the findings or ruling of the judge below in injunction cases, but may look into and review the evidence on appeal. Even so, there is a presumption that the judgment entered below is correct, and the burden is upon the appellant to assign and show error. Little v. Wachovia Bank & Trust Co., supra; Teeter v. Teeter, 205 N.C. 438, 171 S.E. 620; Seip v. Wright, supra; Hyatt v. De Hart, 140 N.C. 270, 52 S.E. 781. However, if the record disclosed affirmatively that the ruling of the court below was based on the grounds urged by the defendant in his brief, we would be confronted with an entirely different question from that now before us.

The defendant admits in his answer that in the operation of his quarry, occasionally small stones are thrown over and upon the lands of the plaintiff. He alleges, however, in his answer and contends in his brief that if the plaintiff has been damaged as alleged in his complaint, he is not entitled to obtain any relief in this action, but must proceed by motion in the cause in the case instituted in 1947 by his brother, C. E. Lance. Moreover, he contends that the acts complained of must be found to be violative of the provisions contained in the judgment entered in that action, otherwise he is estopped from obtaining any relief.

In support of the above position the defendant cites in his brief the case of Faison v. McIlwaine, 72 N.C. 312, in which it is stated: "It is well established in this state that no party to a suit is permitted by new and independent action praying for an injunction to seek any relief which he might obtain by motion in the original action * * * the present plaintiff might have obtained the relief he seeks by a motion in the original action, as upon audita querela, which the judge would have allowed on such terms as might be just." Certainly this is a correct statement of the law, but it applies only to parties who were parties to the original suit.

We do not concur in the view that this plaintiff is bound by the action instituted in 1947 by his brother, C. E. Lance. The plaintiff was not a party to that action and is not bound by it. One tenant in common may sue alone and recover possession of the common property, as against a third party claiming adversely to him and his cotenants, even though he can prove title to only an undivided interest, since each tenant in common is entitled to possession of the whole, except as against a cotenant. Yancey v. Greenlee, 90 N.C. 317; Thames v. Jones, 97 N.C. 121, 1 S.E. 692; Gilchrist v. Middleton, 107 N.C. 663, 12 S.E. 85; Moody v. Johnson, 112 N.C. 804, 17 S.E. 579; Morehead v. Hall, 126 N.C. 213, 35 S.E. 428; Winborne v. Elizabeth City Lumber Co., 130 N.C. 32, 40 S.E. 825; Shelton v. Wilson, 131 N.C. 499, 42 S.E. 937; Taylor v. Meadows, 169 N.C. 124, 85 S.E. 1; Davis v. Morgan, 228 N.C. 78, 44 S.E.2d 593; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673. However, one tenant in common cannot recover damages for trespass against a third party in excess of his pro rata interest in the common property. Winborne v. Elizabeth City Lumber Co., supra. Cf. Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694.

In the case of Winborne v. Elizabeth City Lumber Co., supra, Clark, J. (later Chief Justice), said: "As to the damages for cutting the timber, the plaintiff was entitled to recover only one-fifth, since this judgment would not be a bar to an action by the other four tenants in common for their pro rata part of the damages."

As stated in Huskins v. Yancey Hospital, supra, our ruling on the action of the court below, dissolving the temporary restraining order, will have no bearing whatever on the rights of the parties when the action is tried on its merits.

For the reasons given, the action in the court below, in dissolving the temporary restraining order, is



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