29 S.E.2d 551 | N.C. | 1944
A temporary restraining order was continued to the hearing, restraining defendants from interfering with plaintiff's mining for mica and *176 feldspar in certain lands, with restrictions upon plaintiff's use of explosives near defendants' home.
Defendants appealed from the order continuing the restraining order. Plaintiff appealed from so much of the order as imposed restriction on his mining operations. DEFENDANTS' APPEAL. The defendants base their appeal from the order continuing the temporary restraining order to the hearing upon the ground that the title to the mineral rights claimed by plaintiff in the described lands was in dispute, and that the ancillary remedy of injunction properly would not be available until final determination of the issues of fact.
Ordinarily, a court of equity will not interfere by injunction to determine a disputed question of title to land, nor undertake to dispossess one party for the benefit of another, but rather will leave the controverted issues of fact to be decided in an action at law. Black v.Jackson,
The power of the court to restrain a continuing trespass, in proper case, has been upheld in other jurisdictions. United Fuel Gas Co. v.Townsend,
While the court below made no specific findings of fact, in the absence of request, it appears from the pleadings and affidavits set out in the record that there was evidence to support the ruling that the temporary restraining order should be continued, pending the final determination of the issues raised by the pleadings. The surface and mineral rights in the land had been, by deed or reservation, segregated. Vance v. Pritchard,
Upon the evidence before the court on the hearing, we think the conclusion was warranted that no serious questions of title or possession were raised by the defendants, and that plaintiff's right of ingress for the purpose of mining was being wrongfully and continuously denied. In addition, there was evidence offered by plaintiff that the mica which plaintiff was attempting to mine was "of No. 1 quality strategic mica, the very identical kind being sought now by the United States Government through its subsidiary, Colonial Mica Corporation, for production to further the war effort." The court's order restrains interference on the part of defendants and permits the mining and removal of mica and feldspar from the land pending the action, and at the same time affords protection to any interests the defendants may have therein by requiring adequate bonds and accounting for proceeds of sales. Falls v. McAfee,
The ruling of the court below in continuing the temporary restraining order to the hearing will not be disturbed. It will be understood, however, that neither the court's order nor this opinion is intended to prejudice the defendants in the assertion of title to the mineral rights referred to by additional or other evidence which they may hereafter be able to present in the trial of the cause on the issues raised in the pleadings. *178
PLAINTIFF'S APPEAL.
In view of the evidence that defendants' dwelling house and the spring from which water is piped for domestic purposes would be endangered by the use of high explosives, the order appealed from restricts the plaintiff in his mining operations from using dynamite for the purpose of mining mica or feldspar within 200 yards of the house or spring.
As one of the ends sought by the use of the ancillary remedy of injunction is to preserve the status quo and to protect the parties from irreparable injury pending the final determination of the action, we think the insertion of this qualification upon plaintiff's right to mine was in the exercise of a wise and just discretion on the part of the judge. His ruling will be upheld.
On defendants' appeal: Affirmed.
On plaintiff's appeal: Affirmed.
