JAMES C. McCOLL,
Plaintiff
v
.
HENRY L. ANDERSON, JR., and wife, FRANCES W. ANDERSON,
Defendants
Clement & Yates, by Charles E. Clement; and Moore & Van Allen,
PLLC, by George V. Hanna, III, for plaintiff-appellant.
Anderson, Daniel & Coxe, by Bradley A. Coxe; and Di Santi,
Watson & Capua, by Anthony S. Di Santi, for defendants-
appellees.
WALKER, Judge.
Plaintiff appeals from an order denying his motion for a
preliminary injunction. The relevant facts are as follows:
Plaintiff and defendants are the owners of adjoining tracts of
property located in the Reed Subdivision in Blowing Rock. Pursuant
to the deeds within the parties respective chains of title,
defendants' property is subject to an easement for a driveway which
provides plaintiff with access from his property to U.S. Highway
321 (Highway 321). In October of 1999, without plaintiff's
consent, defendants constructed a new driveway which provides
plaintiff with a different access to Highway 321.
On 3 July 2000, plaintiff initiated this action seeking: (1)
an injunction restraining defendants from blocking plaintiff's useof the original driveway, (2) a declaratory judgment declaring that
plaintiff, his heirs and assigns have a permanent right to the use
and enjoyment of the original driveway and (3) compensatory and
punitive damages. Thereafter, plaintiff moved the trial court for
a preliminary injunction, enjoining defendants from interfering
with his use of the original driveway. In an affidavit attached to
the motion, plaintiff stated that the new driveway “increases the
risk of collision” when accessing Highway 321 and that during the
winter months the new driveway is “dangerous and inconvenient.”
After hearing from the parties, the trial court denied
plaintiff's request for a preliminary injunction. In its order,
the trial court found that plaintiff's property is the dominant
estate and that defendant's property is the servient estate.
However, it concluded that plaintiff had failed to show a
likelihood of success on the merits or that he was likely to
sustain irreparable harm unless a preliminary injunction was
issued. The trial court further concluded that “[i]n the event
this case is submitted to a jury, a portion of the jury
instructions shall be based upon the Restatement of Property, 3d,
§ 4.8(3).”
We first address defendants' motion to dismiss plaintiff's
appeal as interlocutory. By order dated 5 March 2002, this Court
initially denied defendants' motion; however, for the foregoing
reasons, we withdraw said order. “An order or judgment is
interlocutory if it is made during the pendency of an action and
does not dispose of the case but requires further action by thetrial court in order to finally determine the entire controversy.”
N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460
S.E.2d 332, 334 (1995). Generally, there are only two methods by
which an interlocutory order may be appealed: (1) certification by
the trial court pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), or
(2) “'if the trial court's decision deprives the appellant of a
substantial right which would be lost absent immediate review.'”
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666,
669 (2000)(quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477
S.E.2d 693, 695 (1996), disc. rev. denied, 345 N.C. 340, 483 S.E.2d
161 (1997)); see also N.C. Gen. Stat. § 1-277(a) and N.C. Gen.
Stat. § 7A-27(d)(1)(2001). Here, the parties agree the trial
court's order denying plaintiff's request for a preliminary
injunction is interlocutory. Additionally, the trial court has not
certified the order pursuant to Rule 54(b). Nevertheless,
plaintiff contends the order denies him of a substantial right
which requires our immediate review.
The “'substantial right' test for appealability of
interlocutory orders is more easily stated than applied. It is
usually necessary to resolve the question in each case by
considering the particular facts of that case and the procedural
context in which the order from which appeal is sought was
entered.” Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d
338, 343 (1978). Despite the case-by-case approach to the
substantial rights test, our Supreme Court has identified two
general criteria for determining whether an appeal from aninterlocutory order is warranted: (1) “the right itself must be
substantial” and (2) “the deprivation of that substantial right
must potentially work injury to [the party] if not corrected before
appeal from final judgment.” Goldston v. American Motors Corp.,
326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Adherence to these
criteria promotes the efficient functioning of the appellate
process by eliminating “the unnecessary delay and expense of
repeated fragmentary appeals” and allowing the presentation of “the
whole case for determination in a single appeal . . . .” Raleigh
v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951).
Plaintiff maintains our review of the trial court's order is
necessary at this stage because: (1) the location of the new
driveway is “neither convenient nor safe” and, consequently, “has
caused plaintiff immediate and irreparable injury,” and (2) the
trial court's conclusion that at trial the jury instructions shall
be based upon the Restatement of Property, 3d, § 4.8(3) prevents
him from having “a trial in which the trial court is free to apply
proper North Carolina law.”
Our courts have held that an appeal from an interlocutory
order involving access to an easement ordinarily does not implicate
a substantial right. See Pruitt v. Williams, 288 N.C. 368, 218
S.E.2d 348 (1975); and Miller v. Swann Plantation Dev. Co., 101
N.C. App. 394, 399 S.E.2d 137 (1991). In Pruitt, the plaintiffs
sought a preliminary and permanent injunction restraining the
defendants from obstructing a road over the defendants' property in
which the plaintiffs claimed a prescriptive easement. Thereafter,the trial court issued a preliminary injunction ordering the
defendants to leave the road unobstructed until a final
determination of the action. Our Supreme Court found “there is no
evidence that shows a reasonable probability that defendants will
incur the loss of a substantial right by the granting of the
preliminary injunction unless reviewed before final judgment,” and
it concluded that the appeal should have been dismissed. Pruitt,
288 N.C. at 374, 218 S.E.2d at 352.
In Miller, the trial court granted the plaintiff a partial
summary judgment entitling him to continue to make use of an
easement across the defendant's property. The defendants argued
“'it would seem undeniable' that an order disposing of one's
property rights also affects a substantial right.” This Court
disagreed, noting that:
We simply fail to see how defendants' claimed
right to hold title to the property free from
this encumbrance “will clearly be lost or
irremediably adversely affected” if the order
is not reviewed before final judgment.
Nothing in the facts indicate that allowing
plaintiff use of this easement until final
judgment will permanently harm defendants.
The record contains no allegations that
plaintiff plans to alter or damage the
easement, which is the only possible lasting
harm we can envision that might occur by
waiting. Furthermore, any damage to the
easement or defendants' property resulting
from plaintiff's use during this period can be
rectified later by monetary damages if
necessary.
Miller, 101 N.C. App. at 395-96, 399 S.E.2d at 138-39. (citations
omitted). Plaintiff maintains that Pruitt and Miller are distinguishable
from the instant case in light of the fact that in those cases the
trial court had issued an interlocutory order in favor of the
dominant estate holders and the servient estate holders had
appealed. In each case, the trial court's holding was based on the
servient estate holders' failure to present sufficient evidence
demonstrating how the continued use of the easement pending a final
judgment would deprive the dominant estate holders of a substantial
right. See Pruitt, 288 N.C. at 374, 218 S.E.2d at 352; and Miller,
101 N.C. App. at 396, 399 S.E.2d at 139. In contrast, here the
trial court issued an interlocutory order in favor of the servient
estate holder and the dominant estate holder has appealed.
We reject plaintiff's assertion that where a servient estate
holder obstructs an easement, the dominant estate holder has per se
been deprived of a substantial right. Indeed, the ultimate
questions here are: (1) whether plaintiff is deprived of a
substantial right by defendants in denying him use of a particular
section of defendants' property to access Highway 321 pending
trial, and (2) whether defendants' construction and plaintiff's use
of a new driveway injure plaintiff in such a manner as to require
this Court's immediate review of the trial court's order.
Based on our careful review of the record, we cannot conclude
that plaintiff will be irreparably injured pending a determination
of the case on its merits. Furthermore, any damages which
plaintiff may incur during this period, by reason of his having touse the new driveway rather than the old driveway, can later be
rectified through monetary damages as well as other remedies.
Alternatively, plaintiff maintains the trial court erroneously
concluded the Restatement of Property, 3d, § 4.8(3) was the law to
be applied upon the trial of the case, thereby irreparably
affecting his “right to a trial based on the proper North Carolina
law.” Our review of the case law indicates that the Restatement of
Property, 3d, § 4.8(3) has not been adopted by our courts as
controlling authority. See Hedrick v. Rains, 344 N.C. 729, 477
S.E.2d 171, 172 (1996)(per curiam)(“Except as specifically adopted
in this jurisdiction, the Restatement should not be viewed as
determinative of North Carolina law”). However, the parties'
pleadings show that defendants have raised several affirmative
defenses including laches, waiver and estoppel. As defendants'
success on any one of these defenses could effectively bar
plaintiff's claim, it is premature for us to consider the merits of
plaintiff's appeal.
We conclude the trial court's order denying plaintiff's motion
for a preliminary injunction does not deprive plaintiff of a
substantial right. Defendants' motion to dismiss plaintiff's
appeal is granted. We note that plaintiff has petitioned for a
writ of certiorari; however, for the reasons stated, we deny the
petition. Accordingly, plaintiff's appeal is hereby
Dismissed.
Judges McCULLOUGH and BRYANT concur.
*** Converted from WordPerfect ***