Jackson v. . Jernigan

Seawell, J. Plaintiff brought tbis proceeding for injunction as an auxiliary remedy for tbe protection of bis property and possessory rights pending tbe final determination of tbe processioning proceeding brought by tbe defendant to establish tbe dividing line between tbe parties. C. S., 361 et seq. Tbe matter was beard below and argued here on that theory, and it is fully adopted in tbe complaint or application upon wbicb tbe injunction was granted. Tbe plaintiff argues that since tbe clerk of tbe Superior Court, before whom tbe special proceeding was pending, has no authority to issue tbe writ, and since protection should not be wholly denied, auxiliary injunctive relief must be given by a judge of tbe Superior Court, citing Hunt v. Sneed, 64 N. C., 176, where that procedure was recognized as proper in some instances. But it may be said in tbe case at bar if tbe clerk has no authority to issue tbe writ, neither do tbe matters committed to bis jurisdiction by tbe cited statute call for it. Tbe property rights alleged to be invaded or endangered — tbe title to tbe land and its peaceable possession — are not involved as yet in tbe proceeding, wbicb concerns only tbe establishment of a dividing line. In such a situation injunction will not lie. Wilson v. Alleghany Co., 124 N. C., 7, 32 S. E., 326. True, if tbe proceeding runs its course and results in a final judgment establishing tbe line, tbe property rights of both parties will be affected by tbe judgment, and will be determined or foreclosed, since tbe line is established as of tbe date of tbe proceeding as a true line between tbe parties and not as a mere interpretation of tbe instruments of title; but such rights are foreclosed only because they have not been pleaded and thus drawn into tbe controversy. Our statutes relating to injunction have, in some instances, modified tbe conditions under wbicb tbe writ may issue, and, in others, have given it specialized application contrary to former equity practice. C. S., 843, 844. It is, of course, a proper remedy for relief against continuing trespass, either where perpetual injunction is sought in an independent action or where tbe injunction is ancillary to an action in which tbe title to land or tbe right to its possession is at issue; and its function in such cases is to protect tbe subject of tbe action against destruction or wrong *404 ful injury until tbe legal controversy bas been settled. But tbe broad provision of C. S., 843 — tbe general statute relating to tbe issuance of tbe writ — still do not permit injunction to issue wben tbe restraint sought is not germane to tbe subject of tbe action — tbat is, wben it is not in protection of some right being litigated therein. Ordinarily, a processioning proceeding involves neither the title to land nor its possession. Cole v. Seawell, 152 N. C., 349, 67 S. E., 753. It is devised for the speedy and inexpensive settlement of disputes over dividing lines, and it depends for its efficacy on the indisposition of either party to bring the title into the controversy. Parker v. Taylor, 133 N. C., 103, 45 S. E., 473. Tbe respondent bas the right to do this, upon proper allegation, and the petitioner may reply in kind. This is apt to be the case wben the location of the line, here or there, involves a gain or loss of important territory. "When allegations are made raising an issue as to the title, the proceeding loses its character as a special proceeding and is converted into an action to try or to clear the title to the land, and is put upon the civil issue docket in the Superior Court, there to be beard as other such actions. Woody v. Fountain, 143 N. C., 66, 55 S. E., 425; C. S., 758. When tbe proceeding bas thus emerged from tbe chrysalis stage into tbe full-winged imago, we apprehend tbat all tbe rules and conditions regulating tbe highly protective ancillary remedy of injunction would be in force; but, even under such circumstances, these do not ordinarily include dispossession of disputed premises, or, for tbat matter, restraint from their cultivation. Tbe writ cannot be used as an instrument to try tbe title to land or settle a dispute as to its possession. In tbe ease at bar, tbe processioning proceeding bas not gone beyond its original phase, and all matters concerning it are still within tbe limited purview of tbe processioning statute, without allegation, controversy, or issue outside of tbe dispute about tbe location of tbe line. Upon tbat question alone, there is nothing upon which tbe right to tbe writ may attach. Wilson v. Alleghany Co., supra. It was tbe privilege of tbe respondent to raise tbe issue as to tbe title in tbe special proceeding, and we think be was required to do so as a basis for any equitable relief be might demand in tbat proceeding. ~We need not pass upon tbe question whether tbe plaintiff might maintain an independent action for tbe relief sought, regardless of tbe pen-dency of tbe .special proceeding. As stated, tbe plaintiff bas not regarded tbe present proceeding for injunctive relief as being of tbat character, but even if we were permitted to regard tbe proceeding independently of tbe processioning proceeding, we do not think from tbat point of view tbe factual situation set up in tbe complaint justifies tbe issue of tbe writ. It bas more tbe appearance of an ouster than a con *405 tinuing trespass, and against tbis injunction will not lie. Lyerly v. Wheeler, 45 N. C., 267. Apparently, eaeb party went into possession according as be fell on tbe one side or tbe other of tbe shifting line of court decision, and tbe last to occupy tbe small area involved was tbe defendant. "Whatever bis original act of destruction of plaintiff’s crop, that is now an .accomplished fact against which injunction will not prevail. Preventive injunction is asked for, and it cannot be used to “redress a consummated wrong” or to undo what has been done. 32 C. J., p. 22; Lacassagne v. Chapuis, 144 U. S., 119, 36 L. Ed., 368; Clark v. Donaldson, 104 Ill., 639. For these reasons, tbe judgment overruling tbe demurrer is Reversed.