Norfolk Southern Railroad v. Rapid Transit Co. ( 1928 )

Civil action to enjoin defendant from trespassing upon plaintiff's property, it being alleged that irreparable damage has been and will continue to be suffered from defendant's wrongful acts, which it threatens to continue ad libitum and has persistently repeated, notwithstanding notice and demand to desist.

The temporary restraining order entered in the cause was dissolved, from which plaintiff appeals, assigning error, because said order was not continued to the hearing. The facts are in dispute; they can be determined only by a jury. A continuous trespass may be enjoined, without an allegation of insolvency. C. S., 844; Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625; Cobb v.R. R., 172 N.C. 58, 89 S.E. 807. And where it can do no harm to grant the injunction, and a refusal is likely to subject one of the parties to further litigation, cost and trouble, the court will ordinarily interfere by orders until the facts can be found and the way made clearer. McCorklev. Brem, 76 N.C. 407. See, also, D. L. W. R. R. Co. v. Morristown, U.S., decided 20 February, 1928.

Error.