Alleghany Co. v. East Coast Lumber Co., 131 N.C. 6 (1902)

Sept. 9, 1902 · Supreme Court of North Carolina

131 N.C. 6

ALLEGHANY COMPANY v. EAST COAST LUMBER COMPANY.

(Filed September 9, 1902.)

1. INJUNCTION — Restraining Order — Timber.

Where, in an action to try title to timber land, the trial judge finds 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, such issue should be submitted to a jury, and could not be determined on a motion to continue an order restraining the cutting of timber.

2. INJUNCTIONS — Acts 1901, Ghap. 666.

An order restraining trespass on timber lands was properly continued until the hearing, under Acts 1901, Chap. 666.

ActioN by the Alleghany Company against the East Coast Lumber Company and others,, heard by Judge George H. Brown, at Chambers, at Washington, N. C., January 28, 190Á. From an order continuing a preliminary injunction restraining the cutting of timber, the defendants, appealed.

Hodman. & Hodman, Small & McLean., for the plaintiff.

E. F. Aydleli and F. H. Busbee, for the defendant-.

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.