Diversion Lake Club v. Heath

• Decision Date: 13 July 1932
• Docket Number: No. 7765.,7765.
• Citation: 52 S.W.2d 380
• Parties: DIVERSION LAKE CLUB v. HEATH et al.
• Court: Texas Court of Appeals

52 S.W.2d 380

DIVERSION LAKE CLUB v. HEATH et al.

No. 7765.

Court of Civil Appeals of Texas. Austin.

July 13, 1932.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Motion by R. W. Heath and others, praying that the Diversion Lake Club and others be adjudged in contempt of court and for an order restraining defendants from violating the permanent injunction appealed from pending the court's final disposition of the case.

Motion overruled.

Hertzberg & Kercheville and Templeton, Brooks, Napier & Brown, all of San Antonio, for appellant.

Ben H. Kelly, of San Antonio, and Ocie Speer, of Austin, for appellees Heath and Matthews.

Marcus W. Davis, of San Antonio, for appellee Norman W. Self.

BLAIR, J.

In this case, an appeal from a judgment perpetually restraining appellant Diversion Lake Club, a corporation, and its officers, agents and servants, from interfering with appellees R. W. Heath, M. L. Matthews, and N. W. Self, in the use of Medina river and Diversion Lake and the public waters thereof, as a fishing place, appellees, as relators, have filed a motion praying that appellant Diversion Lake Club and certain of its officers, agents and servants, as respondents, be adjudged in contempt of this court and for an order restraining respondents from violating the permanent injunction appealed from pending the final disposition of the case by this court. They allege in substance that respondents are unlawfully and wrongfully refusing to allow relators to enter upon the said river and lake, and the public waters thereof, by means of the public road and bridge across same, and to fish therein as they have a right to do under the permanent injunction granted herein, which was in no manner superseded by this appeal; but was and is now in full force and effect. Specifically they allege that respondents demanded that relators not go in and upon the waters of said river and lake and fish; and threatened to cause complaints to be filed and the arrest of relators for trespassing if they did do so in the manner aforesaid.

In answer respondents say, first, "that an order preserving the status quo pending the review of the trial court's judgment would be an order putting into effect the conditions existing at the time of the bringing of this suit, and before the entry of the judgment here on review; and that relators seek not to preserve the status quo, but to preserve it by the enforcement of the judgment complained of."

This answer merely raises the question of what is the status quo of the parties pending the appeal from the judgment perpetually enjoining respondents from interfering with the rights of relators to use the waters in question for fishing; that is, it is argued that the judgment for permanent injunction does not itself maintain the status quo, but actually changes the status quo as it existed when the suit was filed and before the judgment was entered. This contention is not sustained. The authorities are uniform in holding that, as regards a prohibitive injunction, as distinguished from a mandatory injunction, the subject-matter of the suit is the order or judgment restraining the acts about to be committed, or the continuance of the acts which a person is performing at the time the restraining order is issued, and that, notwithstanding an appeal, the judgment is still the measure of such rights of the parties as were adjudicated, and, until reversed, it operates as res adjudicata of the rights adjudicated as effectively as if no appeal had been taken. Respondents did not appeal on supersedeas bond, and, if they had, the great weight of authority, including Texas decisions, hold that an appeal from a final decree granting a prohibitive perpetual injunction and the giving of a supersedeas bond will not have the effect of modifying or suspending the decree so as to permit the doing of the acts enjoined pending the appeal. Ford v. State (Tex. Civ. App.) 209 S. W. 490; State v. Superior Court, 39 Wash. 115, 80 P. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862, 4 Ann. Cas. 229. Note, I L. R. A. (N. S.) 555; Hulbert v. California Portland Cement Co., 161 Cal. 239, 118 P. 928, 38 L. R. A. (N. S.) 436; High on Injunctions (3d Ed.) § 1698a.

In the Ford-State Case, supra, it is held that this court has the power to issue a writ of injunction pending disposition of a case on appeal from a judgment granting a permanent injunction against selling liquor, where such writ was necessary to preserve the status quo or to preserve the subject-matter of the suit pending appeal, and that the giving of a supersedeas bond did not affect the rule. See, also, Hubbart v. Bank, 55 Tex. Civ. App. 504, 119 S. W. 711.

Respondents answer, second, that, after the entry of the judgment herein and after the perfection of this appeal, the board of water engineers of the state of Texas granted respondent Diversion Lake Club a permit to appropriate the waters of Diversion Lake for a game preserve and fishing resort under the provisions of article 7470a, Vernon's Ann. Civ. St.; that, relying in good faith upon this right, and regarding it as a newly acquired title in and to the rights being asserted over the waters of said Diversion Lake, respondents proceeded to warn relators and others of said rights and to demand that said rights be respected by them; and that these newly acquired rights or title to the waters of the said Diversion Lake cannot be tried and determined in this summary proceeding to punish for contempt and for a temporary restraining order pending the determination of this appeal.

In reply to this answer, relators alleged that the waters of Medina river and Diversion Lake had been found in this case to be navigable waters of streams and lakes within the meaning of the Constitution of this state and of article 4026, R. S. 1925,...