Alleghany Co. v. East Coast Lumber Co.

42 S.E. 331, 131 N.C. 6, 1902 N.C. LEXIS 215

Opinion

ClakK, J.

It is admitted that the defendants are cutting timber around the southern- side of Endless Bay, and if the head of the northeast prong of Long Shoal Eiver 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 tine 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, can not be- decided upon this motion, but must be submitted to a jury.

II is 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, Acts 1901, do- otherwise than continue the restraining order to the hearing.

No Error.