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Glyk and Associates v. Winston-Salem Southbound Railway Co.

Filed: December 15, 1981.

GLYK AND ASSOCIATES
v.
WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY



Appeal by plaintiff from Collier, Judge. Order entered 10 December 1980 in Superior Court, Forsyth County. Heard in the Court of Appeals 13 October 1981.

Clark, Judge. Judges Hedrick and Martin (Harry C.) Concur.

Clark

GLYK seeks to appeal from the order of the trial court granting a preliminary injunction, which restrains GLYK, its tenants, or its customers from going over or upon lands identified as the western parcel and the southern parcel pending trial on the merits. G.S. 1A-1, Rule 65. A preliminary injunction is a temporary order from which no appeal lies unless the order deprives the restrained party of a substantial right. G.S. 1-277(a) and G.S. 7A-27(d). Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975); 7A-27(d). Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975); Setzer v. Annas, 286 N.C. 534, 212 S.E.2d 154 (1975); Gunkel v. Kimbrell, 29 N.C. App. 586, 225 S.E.2d 127 (1976).

The first question presented is whether GLYK is deprived of any substantial right by the order granting the preliminary injunction to Railway. At the hearing on Railway's motion for preliminary injunction GLYK did not offer evidence. GLYK takes the position that Railway failed in its burden of establishing its right to a preliminary injunction. G.S. 1A-1, Rule 65(b). Setzer v. Page 168} Annas, supra. This burden required Railway to offer evidence at the hearing on its motion sufficient to satisfy the trial judge that (1) there is probable cause that Railway will be able to establish the rights which it asserts and (2) there is reasonable apprehension of irreparable loss unless injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect Railway's rights during the litigation. Pruitt v. Williams, supra. At the hearing Railway offered in evidence 29 deeds, 3 plats, and a "Chart Showing Chain of Title," apparently to the lands claimed by both Railway and GLYK. Railway also offered the affidavit of its Assistant Vice-President, J. W. Hamilton, who averred in substance that Railway had deeds to and was the owner of both the western and southern parcels and was using that property, and that GLYK began trespassing in September 1979 on both parcels and had continued the trespass since that time. In addition Railway called as a witness Harris B. Gupton, a licensed land surveyor, who testified that deeds to Railway encompassed the disputed parcels.

After hearing, Judge Collier granted Railway's motion for preliminary injunction, finding that Railway had shown prima facie title to the parcels in dispute, that GLYK had no easement in the southern parcel, and that GLYK was continually trespassing on Railway's lands. Railway was requested to post a bond of $75,000. Judge Collier based the preliminary injunction on his finding that Railway established prima facie record title and that GLYK was engaged in recurring or continuous acts of trespass. Judge Collier's ruling and injunction is supported by the rule of law that where there is a continuing trespass or wrongful interference with the present right of possession, the court will ordinarily give relief by temporary injunction, pending the action, with such reasonable restrictions as the exigencies of the case may require. Young v. Pittman, 224 N.C. 175, 29 S.E.2d 551 (1944); Conrad v. Jones, 31 N.C. App. 75, 228 S.E.2d 618 (1976); 7 Strong's N.C. Index 3d Injunctions ยง 13.4 (1977).

After the records and briefs were filed and after hearing in this Court, on 18 October 1981, GLYK filed a Motion to Enlarge Record on Appeal to include the following orders of the trial court:

1. An Order signed by Judge Collier on 15 December 1980, which suspended the temporary injunction as to Electric Supply,

Inc., a GLYK tenant, until 31 January 1981, so that its employees and customers would have access to its premises.

2. An Order to Reconsider signed by Judge Collier on 22 January 1981, which directed any Superior Court Judge holding the Courts of the Twenty-First District to hear GLYK's Motion to Reconsider the preliminary injunction of 10 December 1980.

3. An Order signed by Judge Wood on 30 January 1981, which again suspended the temporary injunction as to Electric Supply, Inc., until 15 March 1981 so that it could relocate its business.

4. An Order Staying Preliminary Injunction Pending Appeal signed by Judge Seay on 3 February 1981, after a hearing consisting of oral argument by counsel for GLYK and Railway. The hearing was held on GLYK's Motion for Stay pending appeal made on 12 December 1980. See G.S. 1A-1, Rule 62(c), and Appellate Rules 8 and 36. The order noted that Railway in its answer alleged a continuous trespass by GLYK, its tenants and its tenants' customers without compensation, and that the fair market rental value of the disputed lands was $200 per month. The preliminary injunction of 10 December 1980 was stayed "pending a decision by the appropriate appellate court. . . ." The order further required GLYK to post a stay bond of $1,000. Railway excepted to the stay order and gave notice of appeal. On 4 February 1981 Railway filed with this Court (1) Petition for Writ of Mandamus seeking to have the orders of Judge Wood and Judge Seay vacated, and (2) Petition for Temporary Stay of said orders and Supersedeas. All of the petitions were denied by this Court. Railway has not perfected its appeal from the order of Judge Seay.

In determining whether to allow GLYK's motion to enlarge the record, we have considered the original record on appeal and devoted much time in the examination and study of the many deeds and various maps offered in evidence by Railway at the December 1980 hearing in an attempt to determine if they show title or easements in GLYK to the parcels in dispute. The record on its face, without supporting evidence, reveals none. The wisdom of GLYK in failing to offer evidence at this hearing was ...


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