Cauble v. Bell

107 S.E.2d 557 (1959) 249 N.C. 722

David H. CAUBLE and wife, Harriet M. Cauble, on behalf of themselves and all other residents and property owners in Fairmount Park,
v.
Carl J. BELL and wife, Lola Beatty Bell and the Sun Oil Company, a corporation.

No. 175.

Supreme Court of North Carolina.

March 18, 1959.

Ernest R. Warren, Grady B. Stott, Hugh W. Johnston and J. Bruce Morton, Gastonia, for defendants-appellants.

L. B. Hollowell and Verne E. Shive, Gastonia, for plaintiffs-appellees.

RODMAN, Justice.

Defendants' first assignment of error is directed to the failure of the court to make findings of fact which conform to their views. They urge us to review the findings with a resultant picture presented by the use of their spectacles.

This asserted right to review and make other and additional findings is based on the fact that plaintiffs seek injunctive relief. This Court has the right to review findings made with respect to interlocutory orders denying or granting injunctive relief. Cahoon v. Board of Com'rs of Hyde County, 207 N.C. 48, 175 S.E. 846; Wentz v. Piedmont Land Co., 193 N.C. 32, 135 S.E. 480; Coates v. Wilkes, 92 N.C. 376. This is true since only questions of fact are then considered.

The judgment here is a final determination of the rights of the parties. The mere fact that equitable (injunctive) relief is granted gives us no authority to modify findings determinative of issues of fact raised by the pleadings. McGuinn v. City of High Point, 217 N.C. 449, 8 S.E.2d 462, 128 A.L.R. 608; Galloway v. Stone, 208 N.C. 739, 182 S.E. 333; Barringer v. Wilmington Savings & Trust Co., 207 N.C. 505, 177 S.E. 795; Carolina-Tennessee Power Co. v. Hiawassee River Power Co., 171 N.C. 248, 88 S.E. 349; Coates v. Wilkes, supra.

Issues of fact must be determined by a jury unless such trial is waived. G.S. § 1-172; Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384. When the right to a jury trial is waived, the facts found by the judge have the force and effect of a verdict by a jury. N.C.Const. Art. IV, sec. 13; Dayton Rubber Co. v. Shaw, 244 N.C. 170, 92 S.E.2d 799; Little v. Sheets, 239 N.C. 430, 80 S.E.2d 44; Woody v. Barnett, 239 N.C. 420, 79 S.E.2d 789; Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572.

Upon appropriate assignments of error we may examine the evidence to ascertain if there be any to support the verdict. We may likewise, upon appropriate assignments, ascertain if the verdict is sufficient to support the judgment, but we cannot enlarge or diminish findings which constitute the verdict. Carolina-Tennessee Power Co. v. Hiawassee River Power Co., supra.

The pleadings raised issues of fact. The parties elected to waive jury trial and stipulated that the court "might hear the evidence, find the facts and enter the judgment." This stipulation indicates an understanding of the necessity for a determination of the issues of fact raised by the pleadings.

Upon an examination of the evidence we are convinced there is plenary evidence to justify the findings which the court made. The assignment directed to the insufficiency cannot be sustained.

The court found a uniform plan to develop the area, including the property of plaintiffs and defendants Bell, for residential purpose. Property owners within the area included in the plan have conformed to the covenants and plan. The business development is outside of this area and beyond the power of those in the restricted area to control.

Based on the findings supported as they are by the evidence, plaintiffs were entitled to injunctive relief to protect their property rights. Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360; Muilenburg v. Blevins, 242 N. C. 271, 87 S.E.2d 493; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 S.E.2d 710; Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471; McLeskey v. Heinlein, 200 N.C. 290, 156 S.E. 489.

Affirmed.