Wilson v. . Alleghany Co.

32 S.E. 326 | N.C. | 1899

In July, 1898, the plaintiff commenced a special proceeding against the defendant Alleghany Company and others, to have her lands processioned and lines established, under chapter 22, Laws 1893.

In August, 1898, and while the above mentioned proceeding was still pending, the plaintiff applied to Brown, J., for an injunction, based upon affidavit made in said proceeding, in which she alleged that the defendant company was committing trespasses upon her lands by cutting and carrying timber therefrom. This prayer for injunction was denied and the plaintiff appealed.

We must sustain the action of the judge in refusing to grant the injunction prayed for, and for the reasons assigned by him. A judge in some cases of special proceedings, pending before the clerk, may grant injunctive relief, as is held in Hunt v. Sneed, 64 N.C. 176, cited and approved in Sprinkle v. Hutchinson, 66 N.C. 450. But to authorize the judge to issue injunctions in cases of special proceedings, the relief sought by the injunction must be subsidiary to the relief asked in the special proceedings. Hunt v. Sneed, supra. That could not be so in this proceeding, which gives no substantive relief — settles no rights, or titles to property — but only locates the dividing lines between the parties. Williams v. Hughes, at this term. So the injunction could not be in aid of any relief demanded or attainable in the special proceedings to locate the dividing line between the parties, under chapter 22, Laws 1893, and Hunt v. Sneed does not aid the plaintiff.

The judgment of the court refusing the injunction is

AFFIRMED.

Cited: Van Dyke v. Farris, 126 N.C. 746; Midgett v. Midgett, 129 N.C. 21;Whitaker v. Garren, 167 N.C. 660.

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