#### J. A. JACKSON v. ELDRIDGE JERNIGAN.

(Filed 1 November, 1939.)

1. Boundaries § 6: Injunctions § 6a — Injunction will not lie as ancillary remedy in processioning proceeding pending final determination.

When defendant in a processioning proceeding puts title in issue, the cause should be transferred to the civil issue docket for trial, but when he does not do so the proceeding does not involve title or right to possession, but solely the location of the true dividing line, C. S., 363, and therefore injunctive relief will not lie at the instance of one party to enjoin the other from retaining possession of the disputed strip, pending the final determination of the proceeding, even in the - Superior Court on appeal, since the restraint sought is not germane to the subject of the action. C. S., 843, 844. *Seinble:*Nor would injunction lie in an independent suit, since defendant’s entry into possession under the clerk’s judgment in the processioning proceeding is more like an ouster than a continuing trespass.

*402a. Injunctions § 6a—

Injunction will not lie to prevent damage by trespass when it appears that the damage has already been done, since injunction will not lie to redress a consummated wrong, or to establish a cause of action.

Appeal by defendant from *Stevens, J.,*at Chambers, 20 May, 1939. From Sampson.

Reversed.

The plaintiff brought this action and caused injunction to be issued against defendant under the following circumstances:

Prior to the institution of the action a special proceeding had been brought by the defendant in this case to have the line dividing their lands determined under C. S., 363. Survey of the lands was made as provided by law, and on 3 May, 1938, a judgment was rendered in favor of the petitioner in that proceeding, the present defendant Jernigan, determining the boundary in a manner which included the strip of land now in controversy.

On 20 January, 1939, on motion of Jackson to have the order set aside upon newly discovered evidence, the court, in its discretion, set aside the judgment of 3 May, 1938, and ordered a new survey at the cost of Jackson. A delay ensued, which is the matter of controversy between the parties, and the survey under this order was not made, but Jackson took possession of the strip of land according to his contention and proceeded to cultivate it.

Thereafter, on 22 March, 1939, on application of the petitioner, Jernigan, but without notice to Jackson, the clerk set aside his more recent order of 20 January, 1939, and reaffirmed and redeclared his judgment of 3 May, 1938, under which judgment the lands in dispute fell again to Jernigan. The plaintiff in this case caused an appeal to be made to the Superior Court. The line was run, however, as established by the court in this judgment, and on 22 March, 1939, the defendant Jernigan entered upon the strip of land and began to cultivate the same.

Thereupon, the plaintiff brought this action, setting up his claim to certain lands by description, allegedly including the disputed strip, and setting up the various steps which had been taken in the processioning proceeding in which, amongst other pertinent allegations, he complains:

“15. That since the last order was signed by the clerk and irrespective of the fact that the plaintiff gave notice of appeal therefrom, which appeal is now pending, the défendant Jernigan has entered upon said lands, has plowed up the cotton previously planted by the plaintiff and is attempting to confiscate said lands and cultivate them himself without due process of law.

“16. That if the defendant is permitted to proceed with the cultivation of said lands before the true boundary line is established by a court of competent jurisdiction, this plaintiff will be irreparably damaged.”

*403Tbe defendant demurred to tbe complaint and application for injunction as not stating any grounds for equitable relief of tbis nature, pointing out tbe pendency of tbe processioning proceeding, tbe various steps of wbicb be sets up in detail. Tbe judge overruled tbe demurrer and defendant appealed.

*J. R. Young for plaintiff, appellee.*

*R. L. Godwin for defendant, appellant.*

Seawell, J.

Plaintiff brought tbis proceeding for injunction as an auxiliary remedy for tbe protection of bis property and possessory rights pending tbe final determination of tbe processioning proceeding brought by tbe defendant to establish tbe dividing line between tbe parties. C. S., 361 *et seq.*Tbe matter was beard below and argued here on that theory, and it is fully adopted in tbe complaint or application upon wbicb tbe injunction was granted. Tbe plaintiff argues that since tbe clerk of tbe Superior Court, before whom tbe special proceeding was pending, has no authority to issue tbe writ, and since protection should not be wholly denied, auxiliary injunctive relief must be given by a judge of tbe Superior Court, citing *Hunt v. Sneed,*64 N. C., 176, where that procedure was recognized as proper in some instances.

But it may be said in tbe case at bar if tbe clerk has no authority to issue tbe writ, neither do tbe matters committed to bis jurisdiction by tbe cited statute call for it. Tbe property rights alleged to be invaded or endangered — tbe title to tbe land and its peaceable possession — are not involved as yet in tbe proceeding, wbicb concerns only tbe establishment of a dividing line. In such a situation injunction will not lie. *Wilson v. Alleghany Co.,*124 N. C., 7, 32 S. E., 326.

True, if tbe proceeding runs its course and results in a final judgment establishing tbe line, tbe property rights of both parties will be affected by tbe judgment, and will be determined or foreclosed, since tbe line is established as of tbe date of tbe proceeding as a true line between tbe parties and not as a mere interpretation of tbe instruments of title; but such rights are foreclosed only because they have not been pleaded and thus drawn into tbe controversy.

Our statutes relating to injunction have, in some instances, modified tbe conditions under wbicb tbe writ may issue, and, in others, have given it specialized application contrary to former equity practice. C. S., 843, 844. It is, of course, a proper remedy for relief against continuing trespass, either where perpetual injunction is sought in an independent action or where tbe injunction is ancillary to an action in which tbe title to land or tbe right to its possession is at issue; and its function in such cases is to protect tbe subject of tbe action against destruction or wrong*404ful injury until tbe legal controversy bas been settled. But tbe broad provision of C. S., 843 — tbe general statute relating to tbe issuance of tbe writ — still do not permit injunction to issue wben tbe restraint sought is not germane to tbe subject of tbe action — tbat is, wben it is not in protection of some right being litigated therein.

Ordinarily, a processioning proceeding involves neither the title to land nor its possession. *Cole v. Seawell,*152 N. C., 349, 67 S. E., 753. It is devised for the speedy and inexpensive settlement of disputes over dividing lines, and it depends for its efficacy on the indisposition of either party to bring the title into the controversy. *Parker v. Taylor,*133 N. C., 103, 45 S. E., 473. Tbe respondent bas the right to do this, upon proper allegation, and the petitioner may reply in kind. This is apt to be the case wben the location of the line, here or there, involves a gain or loss of important territory. "When allegations are made raising an issue as to the title, the proceeding loses its character as a special proceeding and is converted into an action to try or to clear the title to the land, and is put upon the civil issue docket in the Superior Court, there to be beard as other such actions. *Woody v. Fountain,*143 N. C., 66, 55 S. E., 425; C. S., 758.

When tbe proceeding bas thus emerged from tbe chrysalis stage into tbe full-winged imago, we apprehend tbat all tbe rules and conditions regulating tbe highly protective ancillary remedy of injunction would be in force; but, even under such circumstances, these do not ordinarily include dispossession of disputed premises, or, for tbat matter, restraint from their cultivation. Tbe writ cannot be used as an instrument to try tbe title to land or settle a dispute as to its possession.

In tbe ease at bar, tbe processioning proceeding bas not gone beyond its original phase, and all matters concerning it are still within tbe limited purview of tbe processioning statute, without allegation, controversy, or issue outside of tbe dispute about tbe location of tbe line. Upon tbat question alone, there is nothing upon which tbe right to tbe writ may attach. *Wilson v. Alleghany Co., supra.*

It was tbe privilege of tbe respondent to raise tbe issue as to tbe title in tbe special proceeding, and we think be was required to do so as a basis for any equitable relief be might demand in tbat proceeding.

*~We*need not pass upon tbe question whether tbe plaintiff might maintain an independent action for tbe relief sought, regardless of tbe pen-dency of tbe .special proceeding. As stated, tbe plaintiff bas not regarded tbe present proceeding for injunctive relief as being of tbat character, but even if we were permitted to regard tbe proceeding independently of tbe processioning proceeding, we do not think from tbat point of view tbe factual situation set up in tbe complaint justifies tbe issue of tbe writ. It bas more tbe appearance of an ouster than a con*405tinuing trespass, and against tbis injunction will not lie. *Lyerly v. Wheeler,*45 N. C., 267. Apparently, eaeb party went into possession according as be fell on tbe one side or tbe other of tbe shifting line of court decision, and tbe last to occupy tbe small area involved was tbe defendant. "Whatever bis original act of destruction of plaintiff’s crop, that is now an .accomplished fact against which injunction will not prevail.

Preventive injunction is asked for, and it cannot be used to “redress a consummated wrong” or to undo what has been done. 32 C. J., p. 22; *Lacassagne v. Chapuis,*144 U. S., 119, 36 L. Ed., 368; *Clark v. Donaldson,*104 Ill., 639.

For these reasons, tbe judgment overruling tbe demurrer is

Reversed.