Fabian v. Collins

• Decision Date: 31 August 1876
• Citation: 2 Mont. 510
• Parties: FABIAN, appellant, v. COLLINS, respondent.
• Court: Montana Supreme Court

2 Mont. 510

FABIAN, appellant,

v.COLLINS, respondent.

Supreme Court of the Territory of Montana.

August Term, 1876.

Appeal from Third District, Lewis and Clarke County.

THE complaint alleged, and the referee found, that the plaintiffs were in the possession of certain water and were the prior appropriators thereof; that defendants had unlawfully diverted the same to the great damage of the plaintiffs; and that the injury threatened to be continuous. The plaintiffs applied to WADE, J., for the temporary injunction.

H. M. PORTER and WOOLFOLK & BULLARD, for appellant.

The object of the order to show cause is to present the case on its merits. Hicks v. Michael, 15 Cal. 107.

Respondents disregarded the order of the court to show cause. Appellants are clearly entitled to the injunction. Respondents had no right to move to dissolve the restraining order. The referee found all the allegations of the complaint sustained by the evidence. The unlawful diversion of water, and threats that the diversion will be continuous, have been often held good cause for injunction. Tuolumne W. Co. v. Chapman, 8 Cal. 392;Rupley v. Welch, 23 Id. 452;Hill v. Smith, 27 Id. 476.

The findings of the referee are like the special verdict of a jury. Edwards on Referees, 147, 149; Civ. Pr. Act, § 227; Brady v. Brown, 20 Cal. 520;Peck v. Vandenburg, 30 Id. 11. The report of the referee could only be set aside by exceptions properly saved. Edwards on Referees, 140; Grayson v. Guild, 4 Cal. 122.

The court clearly erred in basing his decision upon the comparative value of the conflicting rights of appellants and respondents. Weaver v. Eureka L. Co., 15 Cal. 274;Gregory v. Nelson, 41 Id. 279.

SHOBER & LOWRY, for respondent.

An application to a court of equity for the exercise of its prohibitory power must be sanctioned by the clearest principles of justice. Hilliard on Injunc. 11.

Clear, legal or equitable rights, free from reasonable doubt, must be shown to authorize a preliminary injunction. Hilliard on Injunc. 10.

The granting, or refusal to grant an injunction, rests in the discretion of the court. The court is sometimes required to balance the inconvenience likely to be incurred by the parties, and withhold an injunction, if one of the parties might suffer irreparable damage. Hilliard on Injunc. 22.

This case is of that character. The appellants have been indemnified by a bond executed by respondents. It requires a very strong case for an injunction, to justify the granting thereof, when such an act would cause infinitely more damage than it would remedy. Atchison v. Peterson, 1 Mon. 570.

KNOWLES, J.

The plaintiffs made an application to the judge of the third judicial district, at chambers, for an injunction pending suit to restrain the defendants from diverting water from their ditch. The judge, upon the complaint of plaintiffs, granted to them a restraining order enjoining the defendants from diverting said water until the further order of the judge, and, in accordance with the nineteenth rule of said district court, ordered the defendants to show cause before C. O. Ewing, Esq., why said injunction should not be granted, pending suit, and referred the matter to said Ewing to take the testimony and report the facts. At the hearing before the referee, the plaintiffs produced testimony to support their complaint. The defendants appeared and filed their answer to the complaint, but made no further showing. This answer was treated as an affidavit by the referee. To this no objection was made. From the evidence before him, the referee made the following report as to the facts:

That from the evidence on the part of the plaintiffs, said plaintiffs were, on the 19th day of April, 1876, and prior thereto, the owners of that certain water ditch described in said plaintiffs' complaint; that defendants diverted the water from said ditch; that, in his opinion, the material facts charged in plaintiffs' complaint are true and have been sufficiently proven before him.

The defendants, upon the filing of their answer, moved the dissolution of the restraining order, granted pending the hearing under the order to show cause. The hearing of this motion was had before the said judge and granted. This the plaintiffs assign as error. The object of this action was the procuring of a permanent injunction. It would seem that the defendants ignored the order to show cause, and made their motion as though an injunction pending suit had been granted upon the complaint alone. This certainly was not proper practice. 1 Whittaker's Pr. 477. If the defendants considered their answer a sufficient showing, then their course should have been to have objected to the findings of fact by the referee and brought the case to a hearing on their exceptions, or upon the report of the referee to resist the application of the plaintiffs for an injunction pending suit. Where an order to show cause has been made and testimony material to the issues produced, the denying of the equities of a complaint by an answer is not always sufficient. And where there is such evidence, as it appears was produced before the referee in this case, this denial is not at all sufficient.

The question of some importance presented in this case is this: What was the effect of the report of the referee upon the facts? The statute provides that a reference may be made when a question of fact other than upon the pleadings arises, upon motion or otherwise, at any stage of the action. Civ. Pr. Act, § 223. It also provides that the court or judge may appoint a referee when the parties do not agree upon one. Id., § 224. If these provisions of the statute give a judge power to make a reference in such a case as this, then we have a provision thereof which provides what the force of the report shall be: “When the reference is to report the facts, the finding reported shall have the effect of a special verdict.” Id., § 227. If the power to order a reference arises from the general chancery powers vested in the court or judge, who at chambers has in certain matters the same power as a court, and the power to establish the nineteenth rule of said court arises from the provision of the statute, which provides that the supreme court and each district court shall have power to make rules and regulations for governing their practice and procedure in reference to all matters not provided for by law (Civ. Pr. Act, § 581), then I think we must refer to the former chancery practice to determine whether the course followed by the learned judge in this case was correct. For the practice, at least, should be analogous, if it does not coincide with that. Tested by its rules, the practice pursued in this case was irregular. The report of the referee should have the force of the report of a master in chancery. Under the chancery practice, this report should have come before the judge on a motion for its confirmation, and the judge could have determined whether or not it was proper to confirm the same. If it had been confirmed, the course of the...