Opinion

Setzer v. Annas

  • 21 N.C. App. 632
  • 205 S.E.2d 553
  • 1974 N.C. App. LEXIS 1889
Court
Court of Appeals of North Carolina
Filed
Jun 5, 1974
Status
Published
Author
Carson
On the bench
Hedrick, Britt, Carson
Cited by
1 cases
Authority
More cited than 6.7%

The opinion

*635 Judge Carson

dissenting:

Following the issuance of the temporary restraining order, a full hearing was held in this matter on 17 September 1973. The defendant, both plaintiffs and various neighbors testified. The undisputed testimony showed that the property in question consisted of approximately 25 acres purchased by the defendant in 1967. The defendant had continuously used his land as a pasture since that time. It was the only land he had which had water suitable for cattle. The fences had been around the land continuously since 1967, and the defendant had improved the fences in certain areas to keep the cattle from getting out. Following the issuance of the restraining order on 5 September 1973, the defendant was forced to move his cattle and a horse from the land in question to another area. He has been deprived of his use of the pasture land continuously since 5 September 1973. No mention was made of assaults or bulldozing.

The case of Raleigh v. Edwards, supra, relied upon by the majority, is not analogous to the instant situation. There, an additional party was allowed to intervene in a condemnation proceeding, and an attempted appeal was taken from the order allowing the intervention. A closer factual situation is found in the case of Board of Elders v. Jones, 273 N.C. 174 , 159 S.E. 2d 545 (1968). In that matter the Board of Elders of the Moravian church had obtained an interlocutory injunction restraining the defendant, the Bible Moravian Church, from using the word “Moravian” in its name. The defendant appealed, and the plaintiff moved to dismiss on the grounds that the appeal was premature. This motion was denied. The use of the word “Moravian” was held to be a substantial right, and the temporary denial of this right was the proper subject of an appeal. The definition of a substantial right is difficult, and each case must be decided on its particular factual situation. I believe that the defendant in this matter suffered a loss of a substantial right by the denial of the use of his property for this long period of time, and I think that the appeal should be considered on its merits.

If this matter were to be considered on its merits, I would feel that errors were committed in the granting of the injunction. However, since this is not before us because of the dismissal of the appeal, it would serve no purpose to point out these errors.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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