No. 315.

97 S.E.2d 463 (1957)

246 N.C. 46

W. S. EDWARDS v. G. C. HUNTER and wife, Lina Hunter.

Supreme Court of North Carolina.

April 10, 1957.

Attorney(s) appearing for the Case

R. W. Wilson and Fouts & Watson, Burnsville, for plaintiff, appellant.

C. P. Randolph, G. D. Bailey and W. E. Anglin, Burnsville, for defendants, appellees.

BOBBITT, Justice.

The statutory procedure for the establishment of a neighborhood public road as defined by G.S. § 136-67 is by special proceeding instituted before the clerk of the superior court in the county where the property affected is situate. G.S. § 136-68. Woody v. Barnett, 235 N.C. 73, 68 S.E.2d 810; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; Grady v. Grady, 209 N.C. 749, 184 S.E. 512. Too, this is the appropriate procedure to establish the "discontinuance" of a neighborhood public road. In re Petition of Edwards, 206 N.C. 549, 174 S.E. 505. When this procedure is applicable, the fact that an interlocutory injunction, affecting the status of the parties pendente lite, may be issued only by the judge, does not divest the original jurisdiction of the clerk in respect of the determination of the proceeding on its merits.

If it appeared from the complaint that the sole purpose of this action was to establish a neighborhood public road as defined by G.S. § 136-67, defendants' motion to dismiss on the ground that the statutory procedure therefor vests original jurisdiction in the clerk would be well taken. However, the segment of old road in controversy is not referred to in the complaint or in plaintiff's affidavits as a neighborhood public road, but as a neighborhood road; nor does plaintiff refer to any of the provisions of G.S. Ch. 136, art. 4.

As pointed out by Barnhill, J. (later C. J.), in Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371, 373: "There is no legislative sanction, or provision for the establishment, of a neighborhood road, a term ordinarily used to designate a private way which serves a neighborhood as an outlet to a public road."

Moreover, the complaint fails to allege that the segment of old road now in controversy remained "open and in general use as a necessary means of ingress to and egress from the dwelling house of one or more families," or that it was "laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Public Welfare", Raynor v. Ottoway, 231 N.C. 99, 56 S.E.2d 28, 29, or that it served "a public use and as a means of ingress or egress for one or more families," or that it served "as a necessary means of ingress to and egress from an occupied dwelling." Indeed, since 1920 the public road, at the location of present U. S. Highway 19W, has passed or run through the portion of plaintiff's property on the west side of Cane River on which his residence is located. Hence, regardless of the label, the facts alleged by plaintiff do not bring the segment of old road now in controversy within the meaning of neighborhood public road as defined by G.S. § 136-67. Compare Clinard v. Lambeth, supra.

Before passing from this phase of the case, it should be noticed that the first statute creating and defining neighborhood public roads, which, as amended, is now codified as G.S. § 136-67, was enacted in 1933. Public Laws of 1933, Ch. 302. This 1933 statute referred to portions of the public road system of the State which had not been taken over and placed under maintenance or had been abandoned by the State Highway Commission but were then open and in general use by the public.

In this action, plaintiff's right to use the segment of old road now in controversy depends upon whether he has a private easement appurtenant to his lands. If plaintiff is to establish such private easement, it would seem that he must do so either by adverse user under claim of right for twenty years or more or as abutting owner on principles considered in Davis v. Alexander, 202 N.C. 130, 162 S.E. 372; Long v. Melton, 218 N.C. 94, 10 S.E.2d 699; Mosteller v. Southern R. R. Co., 220 N.C. 275, 17 S.E.2d 133.

True, upon an appeal from an order granting or refusing an interlocutory injunction, the findings of fact as well as the conclusions of law are reviewable by this Court. Deal v. Enon Sanitary District, 245 N.C. 74, 95 S.E.2d 362; Roberts v. Cameron, 245 N.C. 373, 95 S.E.2d 899. But there is always the presumption that the findings of fact made by the hearing judge are correct and the burden is on the appellant to assign and show error. Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319; Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116; Clinard v. Lambeth, supra. After considering all the affidavits, including the verified pleadings, the findings of fact, which are supported by plenary evidence, are approved by this Court.

We need not decide whether plaintiff, upon construction in 1920 of the new public road on the west side of Cane River, had a private easement to use as theretofore the section of old road on the east side of Cane River between the "northern ford" and "southern ford." Assuming, for present purposes, that plaintiff had such private easement in 1920, the findings of fact establish defendants' plea in bar, namely, that from 1920 to 1955 plaintiff made no use of the segment on defendants' land, but that defendants have had adverse and exclusive possession thereof and that plaintiff's use of defendants' land since 1955, at or near the location of the old roadbed and elsewhere, was by permission of defendants. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104; Hunter v. West, 172 N.C. 160, 90 S.E. 130.

While we refrain from discussing either the evidence or the findings of fact in detail, there is one feature to which we call attention. Until the bridge near the "southern ford" was built in 1941, the plaintiff, in order to reach his land on the east side of the river, had to cross at the "northern ford" or at the "southern ford." There is no evidence or contention that the "southern ford" provided a more satisfactory crossing. Hence, it would seem unlikely that plaintiff until 1941 or thereafter had any reason to proceed by the longer route to reach his land on the east side of the river. Uncontradicted evidence shows that the section of old road on the east side of the river extended from the "northern ford" across (1) the land of plaintiff, (2) the land now owned by defendants, (3) the land of Monroe King, (4) the Whittington Farm, and crossed the "southern ford" at the Mary Byrd farm, thence to the Asheville-Burnsville Highway.

Plaintiff contends that he has offered evidence tending to show that after the new road was constructed in 1920 he continued to use the old road along the east bank of the river and evidence of other facts in conflict with the court's findings. Therefore, he contends, even though the court considered the evidence offered by defendants to be of greater weight, the conflict of evidence as to material facts should suffice to entitle him to a continuance of the temporary restraining order to the final hearing.

The rules applicable upon a hearing to determine whether a temporary restraining order should be continued to the final hearing, stated in Lance v. Cogdill, supra, Huskins v. Yancey Hospital, supra, and Clinard v. Lambeth, supra, need not be repeated. In certain actions, such as an action to restrain the cutting of a shade tree, or an action to restrain the destruction or disposition of certain property, etc., if the temporary restraining order is vacated, irreparable injury results if the plaintiff's cause of action is sound; for no matter how good his proof at the final hearing, the plaintiff will not be able to obtain the relief sought and to which he was entitled.

Here, if, at the final hearing, plaintiff can establish his right to use the portion of the old road that crosses defendants' land he will obtain judgment to that effect. Under the circumstances, it could hardly be said that either plaintiff or defendants would be irreparably injured by the granting or refusal of the interlocutory injunction. Rather, the relative conveniences and inconveniences which the respective parties may suffer from the granting or refusing of the interlocutory injunction would seem determinative; and, when so based, the decision must rest largely in the discretion of the hearing judge. Lance v. Cogdill, supra; Huskins v. Yancey Hospital, supra.

If a conflict of evidence, standing alone, were determinative, the decision would turn solely on whether the action was brought by plaintiff to restrain the blocking of the road or by defendants to restrain plaintiff from trespassing on their lands. Such a consideration is insufficient to control the decision of a court of equity. We think the evidence and findings of fact fully warrant the order of the court below.

Of course, the findings of fact made by the court below are not determinative or relevant when the issues are determined at the trial. Lance v. Cogdill, supra; Huskins v. Yancey Hospital, supra.

In a case such as this, if plaintiff is entitled to the relief sought, it would seem that his better course would be to proceed to trial at first opportunity rather than by appeal from an order vacating the temporary restraining order.



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