Elliot v. Whitmore

• Decision Date: 19 June 1894
• Docket Number: 416
• Citation: 37 P. 459,10 Utah 238
• Court: Utah Supreme Court
• Parties: LEWIS A. SCOTT ELLIOT, RESPONDENT, v. GEORGE C. WHITMORE AND ANOTHER, APPELLANTS. [1]

37 P. 459

10 Utah 238

LEWIS A. SCOTT ELLIOT, RESPONDENT, v. GEORGE C. WHITMORE AND ANOTHER, APPELLANTS. ^[1]

No. 416

Supreme Court of Utah

June 19, 1894

APPEAL from the District Court of the Third Judicial District, Hon Charles S. Zane, Judge.

Action by Lewis A. Scott Elliot against George C. Whitmore and another for an injunction and for damages. Defendants appeal from an order refusing to fix the amount of a supersedeas bond to stay the injunction pending appeal. (See Elliot v. Whitmore, 8 Utah, 253, and Ex parte Whitmore, 9 Utah 441.)

Reversed.

Messrs Brown & Henderson and Mr. E. D. Hoge, for appellants.

The defendants being in possession of the property in dispute the decree in the case is substantially one to compel the defendants to deliver that property over to plaintiff, and directed how it should be done. The right in the waters of the stream being real estate, the defendants, under § 3641, 2 Comp. Laws 1888, had a right to have the amount of a supersedeas bond fixed by the court. Appellants deny the doctrine that an appeal from a decree granting an injunction does not stay the injunction pending appeal. Hovey v. McDonald, 109 U.S. 150; Telegraph Co. v. State, 110 Ind. 203; Railroad Co. v. Gilbert, 71 N.Y. 430; Heinlin v. Cross, 63 Cal. 44. But the object of an injunction is to preserve the property in dispute exactly in the condition in which it is when the decree is made. Mining Co. v. Mining Co., 5 Utah, 182; Hovey v. McDonald, supra. This rule has no reference whatever to a mandatory injunction. People v. Simonsen, 10 Mich. 335; Heinlin v. Cross, supra.

Mr. C. S. Varian and Messrs. Zane & Putnam, for respondent.

An injunctional order should not be suspended in a final decree, as it would be against public policy; the only injunction that will be suspended is a mandatory injunction, and then the matter is within the discretion of the lower court. In this case the decree is wholly preventtive and not mandatory. Our statute is precisely word for word the California statute, and such is the rule in California and has been so from the very earliest time. Mining Co. v. Fremont, 7 Cal. 130; Swift v. Shepard, 64 Cal. 423 (water case); Bliss v. Superior Court, 62 Cal. 542 (water case): Heinlin v. Cross, 63 Cal. 44 (water case). The supreme court of this territory has made the same holding on our statute. Mining Co. v. Mining Co., 5 Utah, 153. The general rule in the United States courts is that it is in the discretion of the lower court whether to suspend the injunction or not, but that it should be suspended only in an extraordinary case. Hovey v. McDonald, 109 U.S. 150; Leonard v. Ozard Land Co., 115 U.S. 465; Knox Co. v. Harshman, 132 U.S. 14. And where the lower court has exercised its discretion in refusing to suspend the injunction this order will not be disturbed. It was objected once in this case that the referee had no right to consider evidence already taken. The testimony was used under the express directions of the supreme court in this case in their opinion, 8 Utah 254, and that court has already made such an order in two former cases. Irrigation Co. v. Stock Co., 7 Utah, 456; Irrigation Co. v. Jenkins, 8 Utah 369.

MERRITT C. J. SMITH, J., concurring in the judgment. MINER, J., dissenting.

OPINION

MERRITT, C. J.:

This is an appeal from an order of the Third District Court refusing the application of the defendants to fix the amount of the supersedeas bond to be given to stay the judgment on appeal from the final decree, and denying a stay of proceedings upon the injunctional order contained in said decree. The complaint in this action was filed in the First District Court at Provo, September 8, 1887, and averred that defendants were entitled to a primary right to the waters of Grassy Trail creek, to a certain amount; that the plaintiff, in 1885, appropriated to his own use certain amounts of water from said creek, in excess of the amount conceded to defendants, and that he was the owner of such excess by prior appropriation; that defendants had, in violation of plaintiff's rights, taken possession of all the waters of said stream, and, "by means of dams, flumes, and ditches theretofore dug and made, unlawfully diverted all of the waters of said creek from the channel thereof, and from plaintiff, and refuses to allow the same or any part thereof, to flow down to or on his said land;" and that defendants threaten to continue such diversion and appropriation unless restrained,--and prays for an injunction, and that the same may be made perpetual enjoining such diversion by defendants. The answer admits the taking of the water, but denies any appropriation by plaintiff, and asserts title to the entire stream in the defendants.

The case has been once before this court (Elliot v. Whitmore, 8 Utah 253, 30 P. 984); and, upon being remanded to the district court, was sent to a referee for trial, who filed his report, in which he finds that the defendants are entitled to a first right in the stream to the amount of 67-150 of a cubic foot per second, and the plaintiff to a right thereafter to 5 cubic feet per second at his head gate, some distance below the premises of defendants; and that the defendants have been and are taking the whole of the waters of the stream; and that a certain device or box presented by plaintiff should be put into defendants' ditch, which would prevent any greater amount of water from flowing therein than the amount awarded to them; and that a competent engineer should be appointed to put the said device into defendants' ditch; and that defendants should be enjoined from disturbing said device, and from taking more water than the amount awarded to them. On the 8th of May, 1893, an order was made confirming said report, and a final judgment was entered pursuant thereto, appointing W. P. Hardesty a commissioner to put in said device, and directing him to proceed and put in said device, and enjoining defendants from interfering therewith when put in, or from taking from the stream more water than the amount awarded them by the decree, and awarded costs against the defendants, taxed at the sum of $ 1,762.65. Thereupon the defendants, desiring to appeal from said judgment to this court, made application to the court, under 2 Comp. Laws, § 3641, to fix the amount of a supersedeas bond to stay the execution of the judgment pending the appeal; and upon such application the court entered an order "that the amount of the bond in this action be fixed at the sum of $ 3,243.20, double the amount of judgment in this action; and that any stay of proceedings upon the injunctional order contained in the decree in this action, or any suspension of said injunctional order, be, and the same is hereby, refused and denied, and the said injunctional orders in the said decree contained are continued in full force and effect." From this order this appeal is taken.

The subject-matter of the controversy in the original action is real property. Fritts v. Camp, 94 Cal. 393, 29 P. 867; Pacific Yacht Club v. Sausalito Bay Water Co., 98 Cal. 487, 33 P. 322. The statute under which defendants made the application to fix amount of supersedeas bond provides that, if the judgment or order appealed from directs the sale or delivery of possession of real property, the execution of the same cannot be stayed unless a written undertaking be executed on the part of the appellant, with two or more sufficient sureties, in an amount not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered, which must be specified in the undertaking, etc. Section 3642 provides that, "whenever an appeal is perfected as provided in the preceding sections of this chapter, it stays all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein." If the judgment or decree from which defendants were seeking to appeal was, in effect, for the delivery of possession of real property, then they were entitled to have the judgment stayed pending the appeal; and it was the duty of the court to fix the amount of the bond for that purpose. The defendants were in possession of the stream, and the provision in the judgment that the defendants should refrain and desist from taking it was, in effect, a judgment that they deliver it to the plaintiff; the judgment directed a commissioner to go and turn it over, and deliver it to the plaintiff.

An appeal does not ordinarily supersede or suspend an injunction, but this rule is only to preserve the status quo of the property at the time the decree is entered. Hovey v. McDonald, 109 U.S. 150, 3 S.Ct 136, 27 L.Ed. 888; People v. Simonson, 10 Mich. 335; Calvert v. State, 34 Neb. 616, 52 N.W. 687; ...