42 S.E. 331 | N.C. | 1902
It is admitted that the defendants are cutting timber around the southern side of Endless Bay; and if the head *6 of the northeast prong of Long Shoal River is located as contended by plaintiff, then (for the purposes of this motion only) it is further admitted that said cutting is being done upon the lands described in the complaint and covered by the John Hall grant.
There is a bona fide and serious contention as to the true location of the head of the northeast prong of Long Shoal River, upon the determination of which rests the location of the John Hall grant, under which plaintiff claims, and defendants do not, and which grant, if located by plaintiff's contention, covers the locus in quo. This contention, which is supported by affidavits of each party in favor of its own view, cannot be decided upon this motion, but must be submitted to a jury.
His Honor, having correctly found as a fact that "there is a bona fide contention on both sides, based upon evidence," and that the plaintiff has made out a prima facie case, could not, under chapter 666, Laws 1901, do otherwise than continue the restraining order to the hearing.
No error.
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