{ "id": 8569308, "name": "JOSEPH B. SETZER and wife, JOAN Q. SETZER v. RONNIE ANNAS", "name_abbreviation": "Setzer v. Annas", "decision_date": "1975-03-12", "docket_number": "No. 84", "first_page": "534", "last_page": "541", "citations": [ { "type": "official", "cite": "286 N.C. 534" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "205 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "21 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557174 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/21/0632-01" ] }, { "cite": "89 S.E. 2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621159 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0636-01" ] }, { "cite": "29 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600394 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0289-01" ] }, { "cite": "159 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "550" }, { "page": "551-552" } ], "opinion_index": 0 }, { "cite": "273 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574891 ], "year": 1968, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0174-01" ] }, { "cite": "78 S.E. 2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1953, "pin_cites": [ { "page": "119" }, { "page": "121" }, { "page": "120" } ], "opinion_index": 0 }, { "cite": "238 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608165 ], "year": 1953, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0357-01" ] }, { "cite": "123 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "626" }, { "page": "626-627" } ], "opinion_index": 0 }, { "cite": "256 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571515 ], "year": 1962, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0128-01" ] }, { "cite": "72 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "236 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623070 ], "year": 1952, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0153-01" ] } ], "analysis": { "cardinality": 659, "char_count": 15224, "ocr_confidence": 0.58, "pagerank": { "raw": 4.2965183443175257e-07, "percentile": 0.9165750590092319 }, "sha256": "a1fef534561546fdb6599f5af98ea1919ea9c5012f7df1ce4e7c8838e5c508f2", "simhash": "1:c02378e14aa2ac5f", "word_count": 2517 }, "last_updated": "2023-07-14T20:24:13.966890+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Copeland and Exum did not participate in the hearing or decision of this case.", "Justice Huskins dissents." ], "parties": [ "JOSEPH B. SETZER and wife, JOAN Q. SETZER v. RONNIE ANNAS" ], "opinions": [ { "text": "SHARP, Chief Justice.\nThe Court of Appeals held defendant was not deprived of any substantial right by the preliminary injunction of 19 September 1973 and therefore had no right under G.S. 1-277 to appeal. Under G.S. 1A-1, Rule 65, the term 'preliminary injunction refers to an interlocutory injunction issued after notice and hearing which restrains a party pending trial on the merits.\nOrdinarily, to justify the issuance of a preliminary injunction it must be made to appear (1) there is probable cause that plaintiff will be able to establish the right he asserts, and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiffs\u2019 rights during the litigation. Edmonds v. Hall, 236 N.C. 153, 156, 72 S.E. 2d 221, 223 (1952) ; Conference v. Creech and Teasley v. Creech and Miles, 256 N.C. 128, 139, 123 S.E. 2d 619, 626 (1962).\nThe purpose of a preliminary injunction is to preserve the status quo pending trial on the merits. Huskins v. Hospital, 238 N.C. 357, 360, 78 S.E. 2d 116, 119 (1953).\nAt the hearing on 17 September 1973 the burden was on plaintiffs to establish their right to a preliminary injunction. G.S. 1A-1, Rule 65(b) ; Board of Elders v. Jones, 273 N.C. 174, 182, 159 S.E. 2d 545, 550 (1968).\nThe majority opinion of the Court of Appeals sets forth in general terms the gist of the evidence offered by plaintiffs and by defendant. Specific evidential facts are set forth in the dissenting opinion.\nOn appeal from the order of a superior court judge granting or refusing a preliminary injunction the Supreme Court is not bound by the findings of fact of the hearing judge but may review and weigh the evidence and find the facts for itself. Huskins v. Hospital, supra at 362, 78 S.E. 2d at 121; Conference v. Creech and Teasley v. Creech and Miles, supra at 140, 123 S.E. 2d at 626-627. A fortiori, the Supreme Court may make its own findings of fact when, as here, neither the hearing judge nor the Court of Appeals made any findings of fact.\nThe evidence before the hearing judge strongly supports a finding that the portion of defendant\u2019s property within the heavy black lines on Defendant\u2019s Exhibit No. 1 was enclosed by fence, and that gates of some type had been erected and were maintained thereon at the points indicated by the letters A and B, on and prior to 28 April 1972; that plaintiffs had knowledge\nof these conditions; and that these conditions continued without substantial change until the service on defendant of the ex parte temporary restraining order of 5 September 1973. For present purposes, this Court so finds.\nAs noted in plaintiffs\u2019 brief in the Court of Appeals, evidence before the hearing judge \u201cshowed that road had been in existence and used as ingress and egress to property of plaintiffs and their predecessors in title since about 1887 and that fences and gates were in place prior to execution by defendant of deed of right-of-way.\u201d\nPlaintiffs alleged defendant severely hindered their use of the right-of-way by the two gates. Plaintiffs contend the easement conveyed by deed of 28 April 1972 vested in them the right to use the \u201cexisting roadway\u201d without any interference by fence, gates or otherwise. Seemingly, the hearing judge and the Court of Appeals based decision on this view. Unquestionably, unequivocal acceptance of this view would require dismissal of the appeal on the ground it was frivolous.\nHowever, the crucial question is whether defendant has a legal right to continue to enclose the portion of his property within the heavy black lines on Defendant\u2019s Exhibit No. 1 and to maintain gates at A and B. If defendant has such legal right, the preliminary injunction of 19 September 1973 deprived him of a valuable property right during the pendency of the litigation.\nDefendant does not challenge plaintiffs\u2019 right to use the \u201cexisting roadway\u201d as a means of ingress and egress; however, he denies plaintiffs\u2019 right to require him to remove the gates at A and B and thereby deprive him of his right to fence his land.\nIn 25 Am. Jur. 2d, Easements and Licenses \u00a7 91 (1966), the author states: \u201cGenerally, the grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from having them; unless it is expressly stipulated that the way shall be an open one or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way if they are constructed so as not to interfere unreasonably with the right of passage. In the absence of an express reservation of such right, however, it is the general rule that whether he may erect and maintain gates, bars, or fences across and along the easement of way depends on the intention of the parties connected with the original creation of the easement, as shown by the circumstances of the case, the nature and situation of the property subject to the easement, and the manner in which the way has been used and occupied. This is a question of fact and is to be determined as such.\u201d Accord, 28 C.J.S., Easements \u00a7 98(b) (1941). Relevant decisions of this Court include Chesson v. Jordan, 224 N.C. 289, 29 S.E. 2d 906 (1944), and Merrell v. Jenkins, 242 N.C. 636, 89 S.E. 2d 242 (1955).\nA preliminary injunction should not be granted if a serious question exists in respect of the defendant\u2019s right to do what the plaintiffs seek to restrain and the granting thereof would work greater injury to the defendant than is reasonably necessary for the protection pendente lite of the plaintiffs\u2019 rights. Huskins v. Hospital, supra at 361, 78 S.E. 2d at 120; Board of Elders v. Jones, supra at 182, 159 S.E. 2d at 551-552. Where a serious question exists the hearing judge considers the relative conveniences and inconveniences of the parties in determining the propriety of a preliminary injunction and the terms thereof if granted.\nThe crucial question, whether defendant has a legal right to establish and maintain gates at A and B and, if so, the kind of gates which would be reasonably appropriate, has not been discussed in any of the briefs. Hence, we make no definitive decision in respect thereof. Evidence at trial may bear significantly upon the ultimate decision of this question. For the present, it is sufficient to say it was error to grant the preliminary injunction on the premise that plaintiffs had an unqualified right to the use of the \u201cexisting roadway\u201d without obstruction by fence, gates or otherwise. We hold that, in failing to consider the crucial question in respect of defendant\u2019s legal right to enclose his land by fence and to place gates at A and B, the hearing judge based his decision upon a misapprehension of the applicable law.\nAlthough plaintiffs and defendant testified at the hearing on 17 September 1973, no testimony was offered pertinent to the portion of the temporary injunction relating to assault and the bulldozing of property along the boundary lines.\nWe have not overlooked appellant\u2019s contention that the preliminary injunction is deficient in that it does not meet the requirements of Rule 65(d) that every injunction or restraining order \u201cshall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined or restrained; . . . . \u201d However, we deem it unnecessary to discuss the legal effect of the deficiencies in Judge Fall\u2019s order granting the preliminary injunction since it is being vacated on another ground.\nThe decision of the Court of Appeals is reversed, and the \u25a0cause is remanded to that court with the direction to vacate the preliminary injunction of 19 September 1973 (miscalled temporary injunction in Judge Fall\u2019s order) and remand the cause to the Superior Court for a de novo hearing on plaintiffs\u2019 motion for a preliminary injunction. Obviously, the necessity for such further hearing may be avoided by prompt trial on the merits.\nReversed and remanded.\nJustices Copeland and Exum did not participate in the hearing or decision of this case.\nJustice Huskins dissents.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Fate J. Beal and Dickson Whisnant for plaintiff appellees.", "Wilson, Palmer and Simmons for defendant appellant." ], "corrections": "", "head_matter": "JOSEPH B. SETZER and wife, JOAN Q. SETZER v. RONNIE ANNAS\nNo. 84\n(Filed 12 March 1975)\n1. Injunctions \u00a7 13\u2014 preliminary injunction \u2014 showing required\nOrdinarily to justify the issuance of a preliminary injunction it must be made to appear (1) there is probable cause that plaintiff will be able to establish the right he asserts, and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiff\u2019s rights during the litigation.\n2. Injunctions \u00a7 13 \u2014 preliminary injunction \u2014 purpose\nThe purpose of a preliminary injunction is to preserve the status quo pending trial on the merits.\n3. Appeal and Error \u00a7 58\u2014 preliminary injunction \u2014 review of evidence by court on appeal \u2014 findings made by court on appeal\nOn appeal from the order of a superior court judge granting or refusing a preliminary injunction, the Supreme Court is not' bound by the findings of fact of the hearing judge but may review and weigh the evidence and find the facts for itself; a fortiori, the Supreme Court may make its own findings of fact when neither the hearing judge nor the Court of Appeals made any findings of fact.\n4. Easements \u00a7 8\u2014 grant of way \u2014 right to maintain gates across way\nGenerally, the grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from having them; unless it is expressly stipulated that the way shall be an open one or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way if they are constructed so as not to interfere unreasonably with the right of passage.\n5. Injunctions \u00a7 13\u2014 preliminary injunction \u2014 question of defendant\u2019s right to do what plaintiffs seek to enjoin \u2014 preliminary injunction improper\nA preliminary injunction should not be granted if a serious question exists in respect of the defendant's right to do what the plaintiffs seek to restrain and the granting thereof would work greater injury to the defendant than is reasonably necessary for the protection pen-dente lite of the plaintiffs\u2019 rights. \u2019'\n.6. .Injunctions \u00a7 13; Easements \u00a7 8\u2014 grant of way \u2014 right to maintain gates across way \u2014 preliminary injunction improper\nThe trial court erred in granting plaintiffs a preliminary injunction prohibiting defendant from obstructing a right-of-way over his property based on the premise that plaintiffs had an unqualified right to the use of the existing roadway without obstruction by fence, gates, or otherwise where the trial court failed to consider the crucial question in respect of defendant\u2019s legal right to enclose his land by fence and to place gates across the roadway as a part of such enclosure of his property.\nJustice Huskins dissents.\nAppeal by defendant under G.S. 7A-30(2) from the decision of the Court of Appeals dismissing his appeal from an order of Falls, J., 17 September 1973 Session of the Superior Court of Caldwell, docketed and argued as Case No. 39, Fall Term 1974.\nPlaintiffs and defendant own adjoining tracts of land in Kings Creek Township, Caldwell County, North Carolina. Defendant acquired his tract of 25.6 acres by deed dated 25 September 1967. Plaintiffs acquired their tract of 31 acres by deed dated 17 September 1971.\nBy deed dated 28 April 1972 James C. Barlow and wife, Sandra B. Barlow, Lona Beaver, widow, and defendant Ronnie Annas and wife, Carolyn Annas, conveyed to plaintiffs, their heirs and assigns, as appurtenant to plaintiffs\u2019 land, \u201ca right-of-way and easement for ingress and egress over that existing roadway which runs from the properties of the parties of the second part through the properties of the parties of the first part to State Road No. 1510.\u201d\nPlaintiffs instituted this action 5 September 1973 to enjoin the obstruction by defendant of the right-of-way and easement \u201cabove referred to\u201d and to recover actual and punitive damages. Plaintiffs alleged defendant had \u201cwilfully and maliciously erected two gates across the right-of-way thus severely hindering the plaintiffs in their use of the same\u201d; and that, on 3 September 1973, defendant, \u201cwhile ordering the plaintiffs to close said gates, maliciously threatened and assaulted them by pointing a gun in their direction.\u201d Plaintiffs also alleged that, on 3 September 1973, defendant \u201cwilfully and maliciously\u201d bulldozed across the boundary lines between his property and plaintiffs\u2019 property and threatened to continue such bulldozing until he had \u201cleveled a strip of land belonging to plaintiffs approximately sixty feet in width.\u201d\nA temporary restraining order, signed by Judge Falls on 5 September 1973 without notice to defendant, restrained and enjoined defendant \u201cfrom obstructing the right-of-way described in the complaint, from threatening and assaulting the plaintiffs, and from continuing to bulldoze the property belonging to the plaintiffs.\u201d Plaintiffs gave bond conditioned as prescribed in the amount, of $1,000.00. The order fixed September 17, 1973 in Caldwell Superior Court as the time and place for defendant \u201cto show cause, if any he has, why this order should not be continued until the final judgment in this action.\u201d\nAt the hearing before Judge Falls in Caldwell Superior Court on September 17, 1973 testimony was presented by plaintiffs and by defendant. Reference was made by the witnesses to the drawing offered in evidence as Defendant\u2019s Exhibit No. 1, reproduced herewith, which indicates the location of the properties of the several parties to the deed of 28 April 1972.\nAt the conclusion of the hearing Judge Falls announced he would \u201ccontinue the restraining order\u201d and directed plaintiffs\u2019 counsel to \u201cdraw [his] order.\u201d\nA preliminary injunction signed by Judge Falls on 19 September 1973 recites: \u201c[I]t appears to be the undersigned, upon hearing proofs and allegations offered by both parties, that the plaintiffs are entitled to a Temporary Injunction until the final judgment in this action.\u201d It continues and concludes as follows:\n\u201cIt Is, Therefore, ordered, adjudged and decreed that the defendant be, and he is hereby restrained and enjoined from obstructing the right-of-way and easement of the plaintiffs described in the complaint, from threatening and assaulting the plaintiffs, and continuing to bulldoze the property belonging to the plaintiffs until the final judgment in this action.\n\u201cIt Is Further Ordered that the written undertaking in the sum of $1,000.00 given by the plaintiffs on the 5th day of September 1973, justified and approved by the Clerk of the Superior Court, shall be sufficient.\u201d\nDefendant appealed to the Court of Appeals. In a two to one decision that court dismissed the appeal. Setzer v. Annas, 21 N.C. App. 632, 205 S.E. 2d 553 (1974).\nFate J. Beal and Dickson Whisnant for plaintiff appellees.\nWilson, Palmer and Simmons for defendant appellant." }, "file_name": "0534-01", "first_page_order": 554, "last_page_order": 561 }