An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-670


Filed: 1 April 2003

MICHAEL K. PRATT, Successor Trustee,

         v.                        Transylvania County
                                No. 00 CVD 495

    Appeal by defendants from order entered 28 February 2002 by Judge Robert S. Cilley in Transylvania County District Court. Heard in the Court of Appeals 17 March 2003.

    Ramsey, Hill, Smart, Ramsey & Pratt, P.A., by Michael K. Pratt and Heather R. Reedy, for plaintiff appellee.

    White & Dalton, by William R. White, for defendant appellants.


    Arthur and Elaine Raynolds (“defendants”) appeal from an order of the trial court granting summary judgment in favor of Michael K. Pratt (“plaintiff”) on certain issues involved in plaintiff's suit. For the reasons stated herein, we dismiss defendants' appeal.
    The relevant facts of the instant appeal are as follows: On 2 November 2000, trustee Nancy W. Paine (“Paine”) filed a complaint in Transylvania County District Court alleging trespass by defendants. Paine alleged that defendants had wrongfully entered and placed water-gathering equipment on her land. In their answer,defendants asserted that their actions were authorized pursuant to a 1994 easement. Paine moved for summary judgment, which the trial court entered in favor of plaintiff Michael K. Pratt (Paine's successor trustee) on 28 February 2002.
    After finding that there was no genuine issue as to any material fact, the trial court decreed that defendants were entitled to use one-half of the water flowing from the spring “under a large rock outcropping” pursuant to the 1994 easement. The defendants were not entitled, however, to use any other water from plaintiff's property or to divert the flow of any spring other than the single spring located under the large rock outcropping. The trial court reserved the issues of plaintiff's monetary damages and recovery of attorney's fees for a hearing at a later date. From the trial court's order, defendants appeal.
    The dispositive issue on appeal is whether defendants are entitled at the present time to review of the order of the trial court. Because we conclude that the order is interlocutory and does not affect a substantial right, we dismiss defendants' appeal.
    Plaintiff asserts in a motion to dismiss the appeal filed with this Court that defendants' appeal is interlocutory and that the trial court did not certify that there was no just reason for delay. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). Without such certification, no appeal lies from an interlocutory order unless a substantial right is affected and will result in injury if not reviewed before final judgment. See Waters v. Personnel, Inc.,294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).
    Defendants contend in their response to the motion to dismiss that the water rights at issue affect a substantial right pursuant to section 7A-27(d)(1) of the North Carolina General Statutes. A right is substantial only if it “will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.” Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983). In the instant case, the trial court's order permits defendants to continue diverting up to one-half of the water from the original spring consistent with the 1994 easement, but prohibits diverting the flow of water from any other stream. Defendants' analogy to the substantial right found by this Court in Soares v. Soares, 86 N.C. App. 369, 370, 357 S.E.2d 418, 418 (1987) (concluding that a substantial right was affected where the trial court's order directed the sale of a marital home), is not persuasive. Accordingly, we allow plaintiff's motion and dismiss this interlocutory appeal.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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