Opinion
No. 7425SC170
Filed 5 June 1974
Appeal and Error 6 — premature appeal from preliminary injunction Appeal from a preliminary injunction is dismissed as premature since no substantial right of defendant appellant was affected by the injunction which required defendant to do nothing more than refrain from obstructing plaintiffs' easement to cross defendant's property in going to and from their property.
APPEAL by defendant from Falls, Judge, 17 September 1973 Session of Superior Court held in CALDWELL County.
Dickson Whisnant and Fate J. Beal for plaintiff appellees.
Wilson, Palmer and Simmons, by George C. Simmons III for defendant appellant.
Judge CARSON dissenting.
This is a civil action wherein plaintiffs, Joseph B. Setzer and wife, Joan Q. Setzer, seek to enjoin defendant, Ronnie Annas, from obstructing the right-of-way and easement of the plaintiffs; from threatening and assaulting the plaintiffs; and from further bulldozing upon the property of the plaintiffs.
The present action was instituted on 5 September 1973 with the filing of a complaint which contained the following relevant allegations:
"4. The plaintiffs, on April 28, 1972, acquired the easement and right-of-way from State Road No. 1510 across the properties of James C. Barlow and wife, Sandra B. Barlow; Lona Beaver, widow; and Ronnie Annas to the property of the plaintiffs . . . .
5. The defendant, in violation of the right-of-way and easement above referred to, has wilfully and maliciously erected two gates across the right-of-way thus severely hindering the plaintiffs in their use of the same. On September 3, 1973, the defendant, while ordering the plaintiffs to close said gates, maliciously threatened and assaulted them by pointing a gun in their direction.
6. On September 3, 1973, the defendant wilfully and maliciously bulldozed across the boundary lines between his property and property of the plaintiffs and threatens to continue such bulldozing until he has leveled a strip of land belonging to the plaintiffs approximately sixty feet in width."
On 5 September 1973, the plaintiffs were granted a temporary restraining order enjoining the defendant from engaging in the activities complained of; and on 17 September 1973, a hearing was held to determine if the temporary restraining order should be continued until a final judgment could be entered in this action. Both plaintiffs and defendant offered evidence at this hearing.
The evidence introduced by the plaintiffs acknowledged that there were wire gates on the defendant's property prior to the granting of the easement to the plaintiffs; however, the plaintiff, Mrs. Setzer, testified that these wire gates were altered by defendant after the granting of the easement so as to make it more difficult to cross the plaintiff's land.
On the other hand, defendant's evidence tends to show that the "wire fences" of which plaintiffs complain were present prior to the date of the granting of the easement and right-of-way, and that the defendant has done nothing more than maintain and improve these fences.
At the conclusion of the presentation of the evidence, the trial judge entered an order continuing the enforcement of the injunction pending a final hearing; and the defendant appealed from the granting of this temporary injunction.
Defendant's four assignments of error are directed to both the granting and the composition of the preliminary injunction which was entered against the defendant by the trial court. The plaintiffs have filed a motion to dismiss this appeal, contending that such an appeal from a preliminary injunction is premature and fragmentary.
An appeal may be taken to this court "from every judicial order or determination of a judge of a superior court . . . which affects a substantial right [emphasis added] claimed in any action or proceeding, or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial." G.S. 1-277. Justice Ervin, writing for the Court in Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669 (1951) succinctly stated the underlying policy of G.S. 1-277 to be as follows:
"Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment. To this end, the statute defining the right of appeal prescribes, in substance, that an appeal does not lie to the Supreme Court from an interlocutory order of the Superior Court, unless such interlocutory order deprives the appellant of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. 1-277; Veasey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377; Emry v. Parker, 111 N.C. 261, 16 S.E. 236."
Thus, the defendant's right to appeal rests solely on our determination of whether he will suffer impairment of a substantial right if this appeal is not entertained. The word "substantial" is defined in Black's Law Dictionary, 4th Ed. (1968) as "of real worth and importance; of considerable value, valuable" and several decisions of our Supreme Court construing G.S. 1-277 exemplify the fact that the presence of the word "substantial" was not intended as mere surplusage, but rather was to function as a roadblock to trivial appeals. Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956); Veazey v. Durham, supra; Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925 (1949).
In the instant case the defendant insists that he will suffer infringement of a substantial right in that he will not be able to enjoy the full and complete use of his property. This contention is without merit. By the terms of the preliminary injunction entered by the trial court the defendant must do nothing more than refrain from obstructing the plaintiffs' lawful right (by the easement granted to plaintiffs by defendant et al) to ingress and egress across the property, and under such circumstances impairment of any right of defendant must be deemed de minimis. Therefore, for failure on the defendant's part to demonstrate that a substantial right was affected by the action of the trial judge, the appeal must be dismissed.
Appeal dismissed.
Judge BRITT concurs.
Judge CARSON dissents.