#### LEAKSVILLE WOOLEN MILLS v. SPRAY WATER POWER AND LAND COMPANY and C. R. McIVER.

(Filed 17 May, 1922.)

1. Appeal and Error — Record—Findings—Equity—Mandatory Injunction.

Where the Superior Court, having heard the matter, has granted a mandatory injunction without having formally found the facts upon which it had been issued, the matters involved being purely equitable, the Supreme Court, on appeal, may examine the evidence presented by the parties, form its own conclusions, and therefrom determine whether the plaintiff is equitably entitled to the relief sought.

*5122. Injunction — Mandatory Injunction — Equity.

The characteristics between the granting of a preventive and mandatory injunction do not now predominate, each requiring the same exercise of caution by the courts as the other; and where the party seeking a mandatory injunction for the protection of easements and property rights has not slept on his rights, and the rights asserted are clear and their violation palpable, the writ will generally be issued without exclusive regard to the final determination of the merits, and the defendant, upon the plaintiff’s success, compelled to undo what he has done.

3. Same — Highways—Driveways—Easements—Final Hearing — Issues.

There was evidence tending to show that 'defendant’s land entirely surrounded the manufacturing plant of the plaintiff, except where it had access by a driveway to a public highway; and that the commissioners of the county having refused to construct the highway as the defendant desired, the defendant, through its agent, and in accordance with the agent’s previously expressed threat, nevertheless so constructed the highway as to prevent plaintiff’s ingress and egress to its plant by vehicles over its driveway; and with such rapidity as to prevent other relief than that by mandatory injunction which he seeks in his action: Held, upon the prima facie case so established, the plaintiff is entitled to the equitable relief sought, without regard to the final determination of the other facts-in controversy as to plaintiff’s ultimate rights.

Appeal by defendants from Sarding, J., at chambers, 16 January,, 1922, from RockiNGHAM.

Application for mandatory injunction. There was evidence tending-to show the facts to be as follows: Plaintiff is the owner of 1% 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, compoany 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 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, regraded, 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 Mclver, 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 commis*513sioners made an order that the road between the Leaksville Cotton Mills and the Leaksville Woolen Mills be narrowed so as not to interfere with, tbe 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 and opposite plaintiff’s premises. The defendant Mclver 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.

Clarkson, Taliaferro & Clarkson, I vie, Trotter & Johnston, and Manly, Uendren & Womble for plaintiff.

P. W. Glidewell, S. P. Graves, and A. L. Brooks for defendants.

Adamis, J.

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 pre*514liminary mandatory injunction where tbe caste is urgent and tbe right is clear; and, if necessary to meet the 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 ex necessitate they usually accomplished their purpose by a writ which was apparently prohibitory. Bispham’s Brin, of Equity, sec. 400 et seq. But these characteristics no longer predominate. As to the circumstances under which the writ should be issued, Sir George Jessel, Master of the Bolls 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, WalJcer, 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 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, 178 N. C., 20.

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 defend*515ant compelled to undo wbat be bas done. Beacb, supra, see. 1019. There are numerous decisions in wbicb various applications of tbis principle bave been made. For example, in Broome v. Tel. Co., 42 N. J. Eq., 141, tbe defendant, 'without legal right, went upon tbe complainant’s land and against bis protest set up telephone poles. Tbe complainant applied for a mandatory injunction, and tbe defendant claimed that it should not be required to remove tbe poles, but at most should only be prohibited from affixing tbe cross-arms and stringing tbe wires. But tbe chancellor said: “Where there is a deliberate, unlawful, and inexcusable invasion by one man of another’s land, for tbe purpose of continuing trespass for tbe trespasser’s gain or profit, and there bas been neither acquiescence nor delay in applying to tbe court for relief, tbe mere fact that tbe trespass was complete when tbe bill was filed will not prevent an injunction in tbe nature of a mandatory injunction against tbe continuance of tbe trespass.” Page 143. In Hodge v. Giese, 43 N. J., Eq., 342, tbe complainant and tbe defendant rented parts of tbe same building as tenants of one landlord — tbe defendant occupying tbe basement and tbe complainant tbe first and second floors. In a cellar at tbe rear of tbe basement was a beater connected with pipes that heated tbe two floors above. Tbe only access to tbe beater was a passway through tbe basement. Tbe defendant prohibited tbe complainant’s access to tbe beater. A bill was filed for an injunction to restrain tbe defendant from excluding tbe complainant — -which in effect was a bill for a mandatory injunction to preserve tbe complainant’s alleged right. Yan Fleet, Y. C., observing that no remedy would be adequate which did not prevent a repetition of tbe injury, said: “On tbe admitted facts of tbe case, and according to well establisbed legal principles, tbe legal right on wbicb tbe complainant rests bis claim to an injunction is in my judgment free from tbe least doubt. Tbis being so, tbe duty of tbe court is plain. It is bound to give to tbe complainant the protection be asks, if tbe injury against which be seeks protection belongs to tbe class wbicb tbis Court may rightfully restrain by injunction. A court of equity may protect and enforce legal rights in real estate, where tbe right, though formally denied, is yet clear on facts which are not denied, and according to legal rules wbicb are well settled, and tbe injury against wbicb protection is asked is of an irreparable nature.” Page 350.

Tbe principle under discussion bas likewise been applied to preserve tbe right to use a passageway and open court (Salisbury v. Andrews, 128 Mass., 336), to remove a structure projecting over tbe complainant’s land (Norwalk Co. v. Vernam, 75 Conn., 663), to prevent a continuing trespass (Hodgkins v. Farrington, 150 Mass., 19), to remove a fence obstructing access to tbe complainant’s property (Avery v. R. R., 106 N. Y., 142), to redress a continuing trespass (Wheelock v. Noonan, *516 108 N. Y., 179), and to restore tbe bank of a ditcb to tbe place from wbicb it bad been removed (Keys v. Alligood, supra). Other illustrations of tbe principle may be found in an elaborate note to tbe case of Moundsville v. R. R., 20 L. R. A., 161. Tbe case of Daniel v. Ferguson, 2 Ch. D., 27, is directly in point. Tbe plaintiff was tbe lessee for a long term of three adjoining bouses. Tbe defendant prepared to build upon an adjoining lot, and tbe plaintiff, after inspection of tbe plans, concluded that erection of tbe proposed buildings would materially affect tbe access to bis bouses of both light and air. After tbe defendant was notified that a motion for an injunction would be made, be put to work a large number of men who continued building until tbe wall reached tbe height of thirty-nine feet from tbe ground. An injunction ad interim was issued and tbe work ceased. When tbe original motion was beard tbe defendant was restrained until judgment or further order from building so as to darken tbe plaintiff’s light and from permitting tbe wall or building to remain. Beferring to tbe conduct of tbe defendant, tbe Court employed this language: “Whether be (defendant) turns out at tbe trial to be right or wrong, a building wbicb be has erected under such circumstances ought to be at once pulled down, on tbe ground that tbe erection of it was an attempt to anticipate tbe order of tbe court. To vary tbe order under appeal would bold out an encouragement to other people to burry on their buildings in tbe hope that when they were once up tbe court might decline to order them to be pulled down. I think that this wall ought to be pulled down now without regard to what tbe result of tbe trial may be.” Page 30. In affidavits offered by tbe plaintiff it is alleged that on tbe day following the final order of tbe board of commissioners tbe defendants at an early hour entered upon tbe plaintiff’s property with a large force of men and the necessary equipment and constructed an embankment wbicb completely obstructs tbe driveway and prevents tbe use of vehicles in going upon and returning from tbe plaintiff’s property. As to tbe time and tbe circumstances under wbicb this work was done, there appears to be no controversy. Whatever their intent may have been, tbe defendants, with knowledge of the orders made by tbe board of commissioners, and no doubt in anticipation of tbe plaintiff’s prompt application for preventive relief, by sheer physical force accomplished the object wbicb they bad not attained by tbe 'orderly process of law. Under these circumstances only one conclusion can be reached. Tbe plaintiff, without regard to tbe ultimate result of tbe action, is entitled to a decree compelling tbe defendants to undo what they have done. Beach, supra, sec. 102. Tbe contention that tbe plaintiff may be compensated in money cannot deprive tbe court of its equitable jurisdiction. Not only are tbe damages difficult of assessment, but even if assessed, tbe plaintiff, if its prima facie case be *517accepted, would ultimately be deprived of the enjoyment of its property. Smith v. Smith, supra; Porter v. Mfg. Co., 65 W. Va., 636. It is the office of a court of equity, in the administration of equitable relief, in all proper cases to prevent such a result. We regard it unnecessary at this time to decide whether the driveway is appurtenant to the plaintiff’s deed, or an easement acquired by adverse user. These and other legal questions discussed in the briefs may be determined on the final hearing. We are concerned now, not with the ultimate disposition of the case, but only with the question whether for the present purpose the plaintiff has clearly shown a prima facie right to the relief demanded. 9 R. C. L., 821; 14 ibid., 315 et seq.; Gray v. Warehouse Co., 181 N. C., 166. We think it has.

The judgment of his Honor is affirmed. Let this be certified to the Superior Court of Rockingham County.

Affirmed.