Boise Development Co., Ltd. v. Idaho Trust & Savings Bank Ltd.

• Decision Date: 03 February 1913
• Citation: 24 Idaho 36,133 P. 916
• Court: Idaho Supreme Court
• Parties: BOISE DEVELOPMENT COMPANY, LTD., a Corporation, J. S.D. MANVILLE, E. L. LARSON and MATTHEW MCCLAIN, Respondents, v. IDAHO TRUST & SAVINGS BANK, LTD., BOISE CITY, a Municipal Corporation of the State of Idaho, and C. R. SHAW, Appellants

133 P. 916

24 Idaho 36

BOISE DEVELOPMENT COMPANY, LTD., a Corporation, J. S.D. MANVILLE, E. L. LARSON and MATTHEW MCCLAIN, Respondents, v. IDAHO TRUST & SAVINGS BANK, LTD., BOISE CITY, a Municipal Corporation of the State of Idaho, and C. R. SHAW, Appellants

Supreme Court of Idaho

February 3, 1913

INJUNCTION-WATERS AND WATERCOURSES-RIPARIAN OWNER-BREAKWATER OR DAM IN STREAM-INJURY.

(Syllabus by the court.)

1. The general rule adopted by courts in granting an injunction pendente lite is more liberal than is applied upon the trial of the cause upon its merits.

2. Where an application is made by a riparian owner for a permanent injunction, restraining a riparian owner upon the opposite side of the stream from constructing and maintaining a dam or breakwater, upon the ground that the construction of such dam or obstruction will cause the water to overflow the land of the riparian owner who applies for such injunction the petitioner should be required to show reasonable grounds for apprehending an actual injury or a reasonable probability of injury, before the court adjudges a permanent injunction.

3. Where application is made for a permanent injunction to restrain the construction and maintenance of a breakwater located upon the lands of a riparian owner, where no showing is made of any real or imminent danger or damage, and it is not shown to any degree of certainty that even a reasonable apprehension, prospect, possibility or contingency of any actual injury exists, an injunction cannot be granted to allay the fears and apprehension of a riparian owner of land upon the opposite side of the stream as to what may occur in the future. It is incumbent upon the petitioner to show that the acts against which he seeks protection are not only threatened, but will in all probability be committed to his injury. The injury must be material and actual, and not fanciful or theoretical, or merely possible.

4. If the injury to a riparian owner on the opposite side of the stream from the place where the breakwater or dam is located will as certainly occur without the embankment, because of the natural overflow, the party seeking an injunction must prove that the additional water cast upon the land will in all probability damage him.

5. A riparian owner of land abutting upon a stream, whether navigable or non-navigable, has the legal right to place barriers, such as dams and breakwaters, for the protection of his lands, and to prevent the overflow or damage by the stream, but in so doing he cannot place such dam or breakwater in the channel or course of the stream as will change the course of the river or divert the course of the water, and will result in destroying or overflowing the lands of the owners abutting on said stream, either above or below.

6. A riparian owner may repel the water flowing in a stream and cause it to flow in the channel of the stream which it has left during high water, if by so doing he inflicts no injury to the riparian owner upon the opposite side of the stream.

7. Held, that the record in this case clearly shows the evidence and findings of the court are not sufficient to justify the issuing of a permanent injunction.

8. Held, that the defendant in this case, the appellant here, is in no way relieved from any liability arising from injury which results to the respondents or any other riparian owners on the opposite side of the river from the appellant, if such injury is caused by the construction of the breakwater in question in this action. Neither does it mean that the appellants cannot be enjoined at any time from maintaining said breakwater when the circumstances show clearly that the construction of the breakwater will cause the water to back up or overflow, erode or injure the lands of the respondents should such breakwater bring about such result in the future.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action for a permanent injunction restraining the construction and maintenance of a dam and breakwater in the Boise river. Reversed.

Judgment reversed. Costs awarded to appellant.

Alfred A. Fraser, for Appellants.

P. E Cavaney, for Appellant, Boise City.

Before a court of equity will grant relief, it is necessary for the complainant to satisfy the court that irreparable injury will occur if an injunction be not granted. (22 Cyc. 762; Schubach v. McDonald, 179 Mo. 163, 101 Am. St. 452 78 S.W. 1020, 65 L. R. A. 136; Rouse v. Martin, 75 Ala. 510, 51 Am. Rep. 463; Berri v. Patch, 12 Cal. 299; Smith v. Schlink, 15 Colo. App. 325, 62 P. 1044; Kirwan v. Murphy, 189 U.S. 35, 23 S.Ct. 599, 47 L.Ed. 698.)

Where compensation in money would be adequate, the injury cannot be said to be irreparable. (Carney v. Hadley, 32 Fla. 344, 37 Am. St. 101, 14 So. 4, 22 L. R. A. 233; Lloyd v. Catlin Coal Co., 210 Ill. 460, 71 N.E. 335; Gause v. Perkins, 56 N.C. 177, 69 Am. Dec. 728.)

In this case there was no evidence introduced which in any manner would tend to prove that the injuries which plaintiffs alleged might occur could not be compensated for in damages. There is no allegation or proof of the insolvency of the defendants. There was no proof introduced to the effect that the lands of the complainants were cultivated lands, or that crops ever were grown upon them; that they had any buildings thereon; that they were inhabited by any person whose home might be flooded, nor any other circumstance or fact which would tend to prove that the damages that might occur could not be compensated for in money. (Blaine v. Brady, 64 Md. 373, 1 A. 609.)

"It is undoubtedly true that a riparian owner may repel the water and cause it to flow in the channel of the stream which it has left if by doing so he inflicts no injury on his neighbor." (Keck v. Venghause, 127 Iowa 529, 103 N.W. 773, 4 Ann. Cas. 716; Whitehair v. Brown, 80 Kan. 297, 102 P. 783, 18 Ann. Cas. 216.)

No evidence was introduced on behalf of the plaintiffs, proving or tending to prove that any of their rights had been invaded or any damage had been done to them. This being the case, a permanent injunction should not have been granted, but the complaint should have been dismissed without prejudice to a new action whenever the rights of the plaintiffs are invaded. (Winsor v. Hanson, 40 Wash. 423, 82 P. 710.)

A riparian proprietor may legally erect any work to prevent his lands from being overflowed by any change in the natural state of the river and to prevent the old course of the river channel from being altered. (Barnes v. Marshall, 68 Cal. 569, 10 P. 115; Lamb v. Reclamation Dist., 73 Cal. 125, 14 P. 625; Gulf etc. R. R. Co. v. Clark, 101 F. 678, 41 C. C. A. 597.)

Smead, Elliott & Healy and Hawley, Puckett & Hawley, for Respondents.

The accustomed course of a stream is not to be found in historical research, but is that which is its natural and apparently permanent course at the time when the right is called into question. (Withers v. Purchase, 60 L. T., N. S., 819.)

The narrowing of a stream by driving piles and filling out to them is the subject of injunction. (Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997, 17 L. R. A. 426.)

For a case directly in point, establishing the law of this jurisdiction, see Fischer v. Davis, 19 Idaho 493, 116 P. 412.

The danger of overflow, erosion and constantly recurring damages by flood is imminent. (Wilson v. Boise City, 20 Idaho 133, 117 P. 115; Morton v. Oregon Short L. R. Co., 48 Ore. 444, 120 Am. St. 827, 87 P. 151, 1046, 7 L. R. A., N. S., 344; Oliver v. Klamath Lake Nav. Co., 54 Ore. 95, 102 P. 786.)

It is well established that respondents will be damaged at every high-water season. This is sufficient to invoke remedy by injunction, to prevent multiplicity of actions. (Corning v. Troy etc. Factory, 40 N.Y. 192; Petrolia Mfg. Co. v. Jenkins, 29 A.D. 403, 51 N.Y.S. 1028; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 11 Am. St. 72, 6 So. 78; Haines v. Hall, 17 Ore. 165, 20 P. 831, 3 L. R. A. 609.)

When it comes to building dams or other embankments or structures into the bed of the stream, so as to interfere with the flow of the stream, the party who does so acts at his peril. A court of equity should never permit such a thing to be done, where there is a showing that it will in all reasonable probability result in "great or irreparable" injury to someone else. (Bitterman v. Louisville etc. R. Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171-184; Trade Dollar etc. v. Fraser, 148 F. 585, 79 C. C. A. 37; 2 Farnham, Water Rights, p. 1635; Hargraves v. Kimberly, 26 W.Va. 787, 53 Am. Rep. 121; Paddock v. Somes, 102 Mo. 226, 14 S.W. 746, 10 L. R. A. 254.)

The rule is that a riparian proprietor cannot erect a structure which would disturb the course of a stream, without the consent of the opposite proprietor, although no material injury is inflicted on the opposite proprietor. (2 Farnham, Waters and Watercourses, p. 1723; Gerrish v. Clough, 48 N.H. 9, 97 Am. Dec. 561, 2 Am. Rep. 165.)

Damages are never adequate to compensate injury to realty or appurtenant rights, for the reason that the property cannot be restored to statu quo, nor can it be replaced by money. In such case the wrong will be prevented or stopped by injunction. (Pomeroy, Eq. Jur., sec. 1357; Blaine v. Brady, 64 Md. 373, 1 A. 609.)

The injury threatened need not be great to entitle the injured party to injunctive relief. (Newell v. Sass, 142 Ill. 104, 31 N.E. 176; Edwards v. Haeger, 180 Ill. 99, 54 N.E. 176; Wahle v. Reinbach, 76 Ill. 322.)

If repeated acts of trespass are done or threatened, although each of the acts, taken by itself, may not be destructive or involve irreparable injury, and the legal remedy may therefore, be adequate for each single act if it stood alone,...