Conrad v. Jones , 31 N.C. App. 75 ( 1976 )

228 S.E.2d 618 (1976) 31 N.C. App. 75

E. Henry CONRAD et al.
v.
Riley L. JONES et al.

No. 7628SC320.

Court of Appeals of North Carolina.

October 6, 1976.

Riddle & Shackelford by John E. Shackelford, Asheville, for plaintiff-appellants.

Bruce A. Elmore by John A. Powell, Asheville, for defendant-appellees.

HEDRICK, Judge.

Plaintiffs contend the court erred in not determining who had title to the eight-inch sewer line. They base their contention upon the court's failure to make any finding or conclusion as to what interest, if any they have in the sewer line, and the court's following announcement:

"[I]t was not necessary for the Court to decide the question of title to the sewer line built by Southeastern in order to resolve this case. That without deciding the question of title with respect to the sewer line, the one built by Southeastern, but assuming that the plaintiff is the owner of it, the plaintiff has failed to produce evidence sufficient to support their prayer for equitable relief in the form of a mandatory injunction or otherwise."

From the findings of fact, conclusions of law, judgment, and the announcement quoted above, it appears that the trial judge believed that the court had no authority to grant equitable relief unless the plaintiffs offered evidence of irreparable injury. However, plaintiffs' claim is based upon "continuing trespass", and equitable relief in the form of a permanent injunction is the proper remedy in such cases in order to avoid a multiplicity of actions at law for damages. Young v. Pittman, 224 N.C. 175, 29 S.E.2d 551 (1944); Collins v. Freeland, 12 N.C.App. 560, 183 S.E.2d 831 (1971); 47 N.C.L.Rev. 334, 359 (1969); Annot., 60 A.L.R. 2d 310 (1958); Annot., 76 A.L.R. 2d 1329 (1961) (injunction for unauthorized use of sewer line).

Obviously there can be no determination as to whether the plaintiffs are entitled to equitable relief until there has been a finding as to the nature and extent of plaintiffs' interest in the eight-inch sewer line. At trial plaintiffs offered evidence tending to show that the property served by the sewer line, together with "all appurtenances thereto belonging" was conveyed to Conrad by Southeastern by deed dated 26 August 1963; yet, the court made no finding regarding this conveyance. Whatever interest or title plaintiffs have in the sewer line was derived from Southeastern by this conveyance.

In all actions tried without a jury it is the duty of the trial judge to find the facts specifically, stated separately its conclusions of law, and enter the appropriate judgment. G.S. 1A-1, Rule 52(a)(1). It is also the duty of the trial judge to make findings of fact determinative of the issues raised by the pleadings and the evidence. McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870 (1940); Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802 (1936); Lawing v. Jaynes and Lawing v. McLean, 20 N.C.App. 528, 202 S.E.2d 334 (1974), modified on other grounds, 285 N.C. 418, 206 S.E.2d 162 (1974); Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971); 1 Strong, N.C. Index 3d, Appeal and Error, § 57, p. 340.

In our opinion, the trial court erred in not making findings of fact sufficient to determine what interest, if any, plaintiffs have in the sewer line. Until such findings are made, the court cannot determine whether plaintiffs are entitled to a permanent injunction against the alleged continuing trespass.

For the reasons stated the judgment appealed from is vacated and the cause is remanded to the superior court for a new trial.

Error and Remanded.

BRITT and MARTIN, JJ., concur.