25 N.C. App. 376 | N.C. Ct. App. | 1975
Lead Opinion
By their first and second assignments of error, defendants contend the court erred in failing to make specific findings of fact based upon the evidence and in failing to make conclusions of law based upon the findings of fact. We find no merit in the assignments.
G.S.'lA-l, Rule 65(d), provides, among other things, that every order granting an injunction shall set forth the “reasons for its issuance”. Rule 52(a) (2) provides, among other things, that “ . . . findings of fact and conclusions of law are necessary on the granting or. denying of a preliminary injunction or any other provisional remedy, only when required by statute expressly relating to such remedy or requested by a party”. We note the difference between our Rule 52 and Federal Rule 52(a) which specifically requires that “ ... in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action”. 5A Moore’s Fed. Prac. § 52, at 2601 (1974).
In this case, the court clearly stated the reasons for the issuance of the preliminary injunction, thus complying with the pertinent provisions of Rule 65(d). As to compliance with Rule 52(a) (2), the record does not disclose that defendants requested the court to make detailed findings of fact and conclusions of law; and, our research has failed to reveal a statute that requires the court to make findings of fact and conclusions of law in granting or denying a preliminary injunction. Hence, absent a request by a party that the court make findings of fact and conclusions of law, the court is required to state only the “reasons for its issuance”.
By their third and fourth assignments of error, defendants contend the trial court erred “in granting the preliminary in
Ordinarily, to justify the issuance of a preliminary injunction, it must be made to appear (1) there is probable cause that plaintiff will be able to establish the right he asserts, and' (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiffs’ rights during the litigation. Setzer v. Annas, 286 N.C. 534, 212 S.E. 2d 154 (1975) ; Resources, Inc. v. Insurance Company, 15 N.C. App. 634, 190 S.E. 2d 729 (1972).
At the hearing, the burden was on plaintiffs to establish their right to a preliminary injunction. G.S. 1A-1, Rule 65(b) ; Board of Elders v. Jones, 273 N.C. 174, 182, 159 S.E. 2d 545 (1968). Plaintiffs contend, and we agree, that they successfully met the two requirements stated above.
We think plaintiffs offered evidence sufficient to show probable cause that they will be able to establish a right which they assert, namely, a right-of-way by prescription over the roadway in question. Their evidence tended to show: The road has been used continuously since 1939 as the primary, and until recently the only, means of ingress and egress to and from the home which the plaintiffs now own. Defendants and their predecessors in title have never exerted control over the road. The road was in existence for a substantial period of time before defendants built their home on or near the road. Telephone and power lines have been built along the side of the road and the meter reader for the local power company has used the road. On one occasion the prior owner from whom plaintiffs purchased their property placed a cable across the road and blocked its use for a period of three to four months. No one ever asked or received permission' to use the road until approximately 1973. The road was used by the prior families who owned plaintiffs’ property and their guests, invitees, and business associates. The road has been used by automobiles, tractors, trucks and other vehicular traffic and plaintiffs put gravel on the road on one occasion. While there was evidence tending to show permissive use, this would raise an issue for determination at a trial on the merits.
Our holding finds support in Dickinson v. Bake, 284 N.C. 576, 201 S.E. 2d 897 (1974), and Dulin v. Faires, 266 N.C. 257, 145 S.E. 2d 873 (1966).
For the reasons stated, the order appealed from is
Affirmed.
Dissenting Opinion
dissenting.
In addition to the evidence recapitulated in the majority opinion, the plaintiffs themselves testified by their affidavit that prior to purchasing the property, they approached defendants and offered “to purchase a written right-of-way across said road which offer was necessitated by the Federal Land Bank in order to obtain a loan for the purchase of their property, and that at that time the defendant, Ardel Williams, stated, ‘You can use the road all you want to, but I ain’t signing nothing.’ ”
“The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement. (Citations omitted.) The law presumes that the use of a way over another’s land is permissive or with the owner’s consent unless the contrary appears. (Citations omitted.) Dickinson v. Pake, 284 N.C. 576, 580, 201 S.E. 2d 897, 900 (1973).
I am of the opinion that plaintiffs, by their own evidence, buttressed the presumption of permissive use and did not present evidence sufficient to overcome the presumption or show use which was adverse, hostile, or under a claim of right.
I vote to reverse.
