Champie v. Castle Hot Springs Co.

• Decision Date: 04 March 1925
• Docket Number: Civil 2204
• Parties: GEORGE CHAMPIE, Appellant, v. THE CASTLE HOT SPRINGS COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

233 P. 1107

27 Ariz. 463

GEORGE CHAMPIE, Appellant, v. THE CASTLE HOT SPRINGS COMPANY, a Corporation, Appellee

Civil No. 2204

Supreme Court of Arizona

March 4, 1925

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Affirmed.

Messrs Anderson, Gale & Nilsson, for Appellant.

Messrs Norris & Norris, for Appellee.

OPINION

LOCKWOOD, J.

Castle Hot Springs Company, a corporation, hereinafter called plaintiff, filed suit in the superior court of Yavapai county against George Champie, hereinafter called defendant alleging substantially as follows: That it was the owner of some 200 acres of ground in Yavapai county, where it conducted a hotel and winter resort; that in connection therewith it operated a livery business for the purpose of supplying its guests with horses; and that defendant wrongfully and unlawfully came on plaintiff's premises and used the same and its conveniences in competition with the latter's livery business, contrary to its orders, to plaintiff's great damage, and that defendant states he will continue to do so, unless ordered by the court to desist. Plaintiff prayed for injunctive relief and damages. A temporary restraining order was issued on the complaint without notice, but on hearing after answer it was continued until trial on the merits.

Defendant demurred to the complaint on the ground that it did not state a cause of action; and showed no equities; that there was a complete remedy at law, and no showing of irreparable injuries. He further answered, denying any wrongful or unlawful trespass or interference with plaintiff's livery business, and alleges that he owned certain horses which he maintains away from the premises of plaintiff; that he never solicited business on plaintiff's premises; but that, when guests of the latter have so asked him, he takes his horses along a road which he claims to be a public highway and hitches them to a public hitching-rack thereon for the convenience of the guests who have made such request.

The demurrers were overruled and the case tried to the court without a jury. Certain findings of fact and conclusions of law were made, and judgment entered thereon for a permanent injunction, restraining defendant in the usual manner from "taking any horses . . . on said property of plaintiff along said roads and passageways or otherwise for the purpose of renting or hiring them out in competition with plaintiff's livery business, and . . . from making use of the conveniences used by plaintiff for the purpose of conducting its livery business, in competition with plaintiff in any manner whatsoever." at the hearing waived any claim for damages. Defendant moved for a new trial, which was denied, and has filed the usual appeal.

The findings of fact herein are not seriously questioned by defendant, except the one to the effect that the roads and passageways mentioned in the pleadings are private. His defense and the ground of his appeal are almost purely questions of law. He sets up five assignments of error, with some twenty-seven subsections, which are correctly grouped by him in four propositions of law, which we will examine separately.

The first goes to the propriety of injunctive relief in a case of this nature. We have considered carefully the argument of plaintiff's counsel and the cases cited, and are satisfied that the action of the court in issuing the temporary restraining order and refusing to dissolve it before the final hearing is now only a moot question and not for our determination here. While there is a decided conflict of authorities on the point, we are of the opinion that the more modern and better considered rule is that injunctive relief is a proper remedy against a continued series of trespasses, past and prospective, even when the defendant can respond in money damages, where the amount of damage in each successive trespass is merely nominal, so that the costs of separate suits would far exceed the recovery. Cragg v. Levinson, 238 Ill. 69, 15 Ann. Cas. 1229, 21 L.R.A. (N.S.) 417, and note, 87 N.E. 121; Chicago etc. v. C. B. & Q. R. R., 181 Ill. 611, 54 N.E. 1026; Donovan v. Pennsylvania etc. Co., 199 U.S. 304, 50 L.Ed. 192, 26 S.Ct. 91 (see, also, Rose's U.S. Notes).

The fourth proposition involves the validity of the finding of fact to the effect that the road used by defendant was a private...