Healy v. Smith

• Decision Date: 06 January 1906
• Citation: 83 P. 583,14 Wyo. 263
• Parties: HEALY ET AL. v. SMITH ET AL
• Court: Wyoming Supreme Court

83 P. 583

14 Wyo. 263

HEALY ET AL. v. SMITH ET AL

Supreme Court of Wyoming

January 6, 1906

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

This was an action to enjoin defendants from going with their sheep upon a range claimed by the plaintiffs as a cattle and horse range, and embracing a large body of public lands, and some scattering tracts of private lands, all unenclosed. The facts are stated in the opinion.

Reversed.

Lonabaugh & Wenzell, for plaintiffs in error.

There was a misjoinder of parties plaintiff, and the demurrer should have been sustained on that ground. This is an action to prevent trespass upon real estate, and the test as to whether there is a proper joinder of parties or not is whether or not any one of the plaintiffs could maintain a separate action against any of the defendants for trespass or for an injunction to prevent trespass. (Gilland v. Ry Co., 6 Wyo. 195; Bliss on Code Pl., Secs. 62, 123; Rev Stat. 1899, Sec. 3479.) The plaintiffs who do not connect themselves with the title to the real estate involved cannot be said to have an interest in the action, especially as they are not even in possession. (Utterback v. Meeker (Wash.), 47 P. 428; Land Co. v. Elec. Ry. & L. Co., 83 N.W. 851; Winslow v. Smith (Mich.), 30 N.W. 905; Armstrong v. Treasurer, &c., 10 O., 235; State v. Ellis, id., 456; Jeffers v. Forbes, 28 Kan. 174; Nieman v. Ry. Co., 61 N.W. 519; Jones v. Bank, 37 N.E. 338.)

The second ground of demurrer is that several causes of action against several defendants are improperly joined. The point upon which this cause of demurrer is alleged is that each owner of real estate has a cause of action for threatened trespass against each of the several sheep owners made defendants in the court below. The defendants are not charged with acting jointly; but that is negatived by the allegation "that the defendants and each of them," also "their said several large bands of sheep." The use of the word "several," and "each of them," clearly indicates that the defendants are not acting in conspiracy or jointly, but severally, each for himself. Therefore, if the plaintiffs have a cause of action, it is a several cause of action against each of the defendants, and there is an improper joinder of causes of action against several defendants.

The third cause of demurrer is that separate causes of action against several defendants are improperly joined. The first cause of action relates to the private lands of the plaintiffs, the second cause of action to public lands, although this distinction is not as clear in the second amended petition as it might be made. The first cause of action does not state facts sufficient to entitle plaintiffs to the relief demanded for the reason that the plaintiffs do not allege the insolvency of the defendants or any of them, nor does it appear from any facts alleged that they do not have a complete and adequate remedy at law for the injuries they complain of.

The petition does not state facts sufficient to entitle plaintiffs to an injunction against the defendants preventing the latter from entering upon and using the public domain for grazing purposes, and the temporary injunction was too sweeping, as the plaintiffs cannot, under any authority that we have been able to discover, secure an injunction that will protect them in exclusive use of public domain. (Buford v. Houtz, 133 U.S. 320; McGinnis v. Friedman, 17 P. 635; Martin v. Platte Valley Sheep Co., 12 Wyo. 432.) The misjoinder of parties was also raised by answer, and is clearly disclosed by the evidence. The findings of fact are not sustained by the evidence as to trespass upon the private lands.

The temporary injunction was improperly granted, as we maintain, upon the whole tract, but there can be no dispute that it was improperly granted as to the public domain, and the court should have so found, and should have ordered that it be dissolved as to such government lands. The evasive manner in which the conclusion of law is worded makes it somewhat uncertain as to the condition of the injunction relative to the public domain. If it was properly granted, it was not dissolved, but is made perpetual forever.

W. S. Metz, J. L. Stotts, M. B. Camplin and Spencer Smith, for defendants in error.

The demurrer interposed by the defendants in the court below was upon several grounds. As to misjoinder of parties plaintiff, the petition discloses that the plaintiffs were using jointly the private lands owned by the individual plaintiffs in the running, and handling of their stock and pasturing thereon, that was about to be destroyed by the threatened trespass of the sheep belonging to the defendants in the court below, and for this reason the plaintiffs were entitled to be joined in the petition. The demurrer was also interposed upon the ground that separate causes of action against several defendants were improperly joined. The petition and evidence show that the defendants in the court below were acting together and were proceeding with one common purpose to take possession of the range and pasture the grass on the private lands in the possession of the plaintiffs in the court below, as well as the range and the grass growing upon the public range occupied by them. This was sufficient reason for uniting the defendants in the petition in question.

The above grounds were not urged by counsel in the court below in their argument, and did not seem to be insisted upon by them, but they insisted upon and argued at great length the following grounds for demurrer to the petition of the plaintiff, viz: That the first and second causes of action in plaintiff's petition did not state facts sufficient to constitute a cause of action, and upon this question of two causes of action the matter was argued by counsel upon both sides in the court below.

The demurrer was overruled by the court for the following reasons, as counsel understood them, viz: First, that the plaintiffs in the court below were entitled to an injunction restraining the carrying out of the wilful threat, and wilful and unlawful attempt to injure and destroy the property of the plaintiffs, not only on the private lands, but on the unoccupied government lands where the threatened trespass and the threatened destruction and damage to the live stock of the plaintiffs was evidently wilful, and without any necessity on the part of the defendants. In other words, as the petition alleged, that the defendants were possessed of ample range to fully feed and supply their herds of sheep with ample pasturage and feed for the coming winter without going upon the range and destroying the property of the plaintiffs. That such a trespass upon their stock and destruction thereof was needless on the part of the defendants, and must have its origin in wilful intention to injure and damage the plaintiffs in their live stock business. Second, for the reason that the petition set out the private lands and the allegation that there was threat and attempt to injure and destroy the grass growing upon the private lands in the joint use of the plaintiffs. We think that a court of equity was justified in overruling the demurrer upon either of the grounds mentioned, for the reason that a court of equity will prevent a threatened and unnecessary damage and destruction to a person's property by a wilful and needless trespass, even if the other party may have a technical right to go on the grounds in question. It certainly will be conceded by us that the defendants had a right to go upon the government lands and to pasture the same. And the evidence shows that they were occupying the government lands at the time of the commencement of this suit, and on said government lands they had abundant feed and pasturage for their sheep without interfering with or molesting the cattle belonging to the plaintiffs, so that the defendants cannot say that they were denied the use of the government lands, and they cannot say that they had not ample feed and pasturage upon the government land then occupied by them without trespassing upon the occupancy of the plaintiffs. We do not understand that a man or a set of men have an equitable right (under their privilege to go upon the public domain) to wilfully injure and destroy the live stock of another occupying a different portion of the public domain simply because they maintain that they have a technical permission of the government to go upon such public domain occupied by the other in carrying on a legitimate business. It is conceded by us that if the sheep of the defendants had not sufficient pasturage without going upon the public lands in the occupancy of the plaintiffs, they would have a legal and equitable right to drive their stock upon said public domain occupied by the plaintiffs, but they have no right morally or otherwise, to needlessly drive their stock upon another's possession and destroy his stock wilfully. And we insist that a court of equity has jurisdiction to restrain a threatened, wilful injury and damage to one's property, although done under the technical form of law. There is but a permission of the United States Government at best, for any stockman to occupy the public domain in the pasturage of his live stock, and we do not believe that such a bare permission to go upon the public domain and pasture live stock gives a right to unnecessarily destroy another's property by driving sheep upon the range occupied by such property; and especially would that be true when there was no necessity for such act. And entertaining this view, the court below certainly was right in its order overruling the demurrer and preventing during the winter of 1902-3 the destruction of the live stock of the plaintiffs by the wilful...