Town of Durham v. Richmond

10 S.E. 208, 104 N.C. 261

• Court: Supreme Court of North Carolina
• Decided: September 5, 1889
• Status: Published

Opinion

Avery, J.

— after stating the facts: Both appeals have been brought up unnecessarily, if not prematurely, and neither of them will be sustained by this Court.

Upon the finding by the Judge below of the fact, that the defendant Railroad Company was not trespassing upon the strip thirty-two feet wide, extending along the original right-of-way, which the plaintiff claimed was lawfully condemned under the provisions of its charter, or is held by prescription or dedication by them as a street, the company has constructed and is operating its new track along what is known as Peabody street, as originally projected, and can, therefore, afford to await the finding by the jury in the exercise of their proper functions of all of the facts material to a decision of the issues of law involved in the action. Meantime, the questions whether a grant can be presumed against the company, under a just construction of section 150 of The Code, or whether the land had been dedicated to public use or lawfully condemned, or whether an easement has been acquired in it by estoppel, will remain, as they are, open for discussion and decision.

On the other hand, the order continuing the injunction in force to the hearing as to the thirty-two feet described, must be sustained, though we will not attempt, ih the face of the conflicting testimony, to extend its operations beyond the boundary line marked by his Honor in the hearing below. This Court has repeatedly refused to dissolve injunctions till the hearing, when it appeared from the. pleadings or affidavits offered that there was a serious dispute about the facts, and doubts as to the right to extraordinary relief. Whitaker v. Hill, 96 N. C., 2; Caldwell v. Stirewalt, 100 N. C., 205. When the facts shall have been ascertained in the usual way, the injunction may be either dissolved or made perpetual.

The plaintiff may or may not satisfy a jury by preponderance of testimony of the truth of the allegations upon which its right to the easement depends, and which would lead to the conclusion that the street, properly located, includes a side track constructed by the defendant, and thus show the defendant to be a trespasser. After a second hearing, the Judge of the District has adhered to his findings of fact, on the proofs before him, that the new side track is not on the territory that he finds to he covered by the alleged condemnation proceedings, and until a jury shall have found the facts differently, we will proceed upon the idea that his Honor’s conclusions of fact were correct. The motions were heard on ex parte affidavits, and it is more proper when we can, in such eases, without injustice to the parties, withhold our opinion as to the facts,- to await the action of a jury upon issues submitted to them.

The cause will be remanded, to the end that the facts be ascertained by a jury.

Remanded.