112 S.E. 24 | N.C. | 1922
Application for mandatory injunction. There was evidence tending to show the facts to be as follows: Plaintiff is the owner of 1 3/4 acres of land in the unincorporated town of Spray, on which its mill is situated. Its premises, except where the driveway connects with the public road, are surrounded by the lands of the water power and land company and allied corporations. Plaintiff was incorporated and began manufacturing woolen products upon its premises about 1881, and in 1893 acquired certain water rights and a title to its property by deed executed by the water power and land company. A driveway connecting the mill with the public road was used by the plaintiff from *550 1884 (date of deed), and then continuously until it was obstructed by defendants (December, 1921). The board of county commissioners ordered the Morgan Foard road in Spray to be rebuilt, regarded, and paved with asphalt, and the water power and land company and the Leaksville Woolen Mills agreed to pay one-half the costs. At several meetings of the board of commissioners during October and November, 1921, the defendant McIver, acting as agent of his codefendant, insisted that the road be widened from five to ten feet at the place where it was intersected by the driveway from plaintiff's property. The plaintiff objected on the ground that its driveway would thereby be obstructed, and that it had no other available outlet; and on 9 November, 1921, the commissioners made an order that the road between (513) the Leaksville Cotton Mills and the Leaksville Woolen Mills be narrowed so as not to interfere with the driveway of the plaintiff. On 5 December the commissioners met again and made another order to the effect that the road be widened five feet on the side across from the opposite plaintiff's premises. The defendant McIver then said, in the presence of the board, that if they did not build the road as contended by defendants, he (meaning both defendants) would do so. Early in the morning of 6 December, the defendants, with a force of men and equipment, constructed an embankment upon the driveway about twenty feet in length and seven in height and ten to twelve in width. This embankment obstructed the plaintiff's right of ingress and egress with vehicles. The plaintiff contended that it was entitled to the driveway as an easement, as a right appurtenant to its premises, and incidentally as a way of necessity.
The defendants contended that another driveway or outlet could be provided on the plaintiff's property which would be not less convenient than the other; that the driveway was really on the land of the defendant company, and the plaintiff's use of it was permissive; that the portion of the road complained of was laid out in accordance with the contract made by the water power and land company and the Leaksville Cotton Mills with the board of commissioners; that if the alleged obstruction be removed the road will be left in a dangerous condition; and that plaintiff can be compensated in money. Numerous affidavits in proof of these claims were read by the parties at the hearing.
Judge Harding rendered judgment for plaintiff; defendants appealed. By application for a mandatory injunction the plaintiff seeks relief from the defendants' alleged invasion of its proprietary rights. In the decree his Honor did not incorporate a formal finding of the facts, possibly because as to questions of fact this court, in matters purely equitable, may examine the evidence and form its own conclusion. We must, therefore, consider the affidavits and the record evidence presented by the parties and determine therefrom whether the plaintiff is equitably entitled to the desired relief.
With reference to their nature injunctions are classified as preventive and mandatory — the former commanding a party to refrain from doing an act, and the latter commanding the performance of some positive act. While in the greater number of instances injunction is a preventive remedy, there is no doubt that the court has jurisdiction to issue a preliminary mandatory injunction where the case is urgent and the right is clear; and, if necessary to meet the (514) exigencies of a particular situation, the injunctive decree may be both preventive and mandatory. Beach on Inj., sec. 97; High on Inj., sec 1 et seq.; 22 Cyc. 741 et seq. Under the former practice the mandatory injunction was distinguished by two characteristics; its infrequent use and its indirect terms. The American courts were not inclined to grant such preliminary order, and when they yielded exnecessitate they usually accomplished their purpose by a writ which was apparently prohibitory. Bispham's Prin. of Equity, sec. 400 et seq. But these characteristics no longer predominate. At to the circumstances under which the writ should be issued, Sir George Jessel, Master of the Rolls in 1875, expressed the opinion that the same caution, neither more nor less, ought to be exercised by courts in granting mandatory injunctions as in granting preventive. Beach, supra, sec. 101; Smith v.Smith, L.R. 20 Eq. 500. Bispham's statement is almost identical: "Indeed, there would seem to be no good reason why, in a proper case, a mandatory injunction should not issue upon preliminary hearing. Gross violations of rights may occur in the shortest possible time, and a few hours wrongdoing may result in the creation of an intolerable nuisance, or in the production of an injury which, if prolonged, might soon become irreparable. In such cases the interposition of the strong arm of the chancellor ought to be most swift; and if the immediate relief afforded could not, in a proper case, be restorative as well as prohibitory, no adequate redress would, in many instances, be given." Prin. of Eq., p. 638. And as to the indirect terms of the writ, Walker, J., pertinently remarks: "Why not call this process by its right name instead of granting what is really mandatory under the guise of preventive relief? When this is done, we are trying to deceive ourselves, for no good or practical reason, when we know what we are actually *552
doing or what the inevitable effect will be. It is simply adherence to an old form and custom of the court of equity, which did not even gain the approval of some of its ablest chancellors. In modern times, since we try to call things by their true and appropriate titles, so we may be better understood, the decided trend of the courts, especially in this country, is towards a more sensible policy, as we have already shown by authority."Keys v. Alligood,
When it appears with reasonable certainty that the complainant is entitled to relief, the court will ordinarily issue the preliminary mandatory injunction for the protection of easements and proprietary rights. In such case it is not necessary to await the final hearing. If the asserted right is clear and its violation palpable, and the complainant has not slept on his rights, the writ will generally be issued without exclusive regard to the final determination of the merits, and the defendant compelled to undo what he has done. Beach, supra, sec. (515) 1019. There are numerous decisions in which various applications of this principle have been made. For example, in Broomev. Tel. Co.,
The principle under discussion has likewise been applied to preserve the right to use a passageway and open court (Salisbury v. Andrews, 128, Mass. 336), to remove a structure projecting over the complainant's land (Norwalk Co. v. Vernam,
The judgment of his Honor is affirmed. Let this be certified to the Superior Court of Rockingham County.
Affirmed.
Cited: Cotton Mills v. Comrs.,