Huber v. Delong

Decision Date29 May 1939
Docket Number2092
Citation54 Wyo. 240,91 P.2d 53
PartiesHUBER v. DELONG ET AL
CourtWyoming Supreme Court

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by Paul Huber against A. H. Delong and another, individually and doing business under the name and style of D. & H. Oil Company, to quiet title, recover damages, and obtain injunction. To review an order vacating the injunction on motion; plaintiff brings error.

For the plaintiff in error there was a brief by E. E. Enterline and Madge Enterline, S. S. C. Chilcote and D. W. Ogilbee of Casper, and oral argument by Mr. Enterline.

The court was justified in granting a temporary injunction during the pendency of the action. Sec. 89-3502, R. S. 14 R. C. L 451-459. The court erred in dissolving the injunction. Western Gro. Co. v. Alleman (Kan.) 106 P. 97. The merits of a controversy will not be decided on a motion to dissolve the injunction. Flaks Inc. v. De Berry (Wyo.) 79 P.2d 825. The same rule applies in attachment cases. Collins v. Stanley, 15 Wyo. 282. Anderson v. Englehart, 18 Wyo. 196. Stowe et al. v Powers, 19 Wyo. 291. Weaver v. Richardson, 21 Wyo. 343. The tax deed and quit-claim deed should have been excluded. Brewer v. Kulien et al., 42 Wyo. 314. Sidlo, etc. v. Phillips, 48 Wyo. 390. Questions of title cannot be determined upon affidavits. Stickney v Hughes, 12 Wyo. 397. Bushnell v. Elkins, 34 Wyo. 495. Dunn v. Gilbert et al., 36 Wyo. 249. A Municipal ordinance must be specifically pleaded, 43 C. J 576, and must be certified under the seal of the city to be admissible, Sec. 22-348 R. S. The ordinance in question was invalid. Sec. 22-349, 369, 374, 375 and 389 R. S. The ordinance violates the provisions of the State constitution, concerning due process of law. Art. 1, Secs. 6-7-34; Art. III, Sec. 27. State v. Loucks, 30 Wyo. 485. Yates v. Milwaukee, 10 Wall. 497. City of Denver v. Mullen et al., 7 Colo. 345. Grossman v. Oakland, 30 Ore. 478. Bristol Co. v. Bristol, 97 Va. 304. Village of Bennington v. Hawks (Vt.) 134 A. 638. Huber had title against all the world except those who could show a better one. Durrell v. Abbott, 6 Wyo. 265. Pregal v. Stickney, 34 Wyo. 324. Allen v. Houn, 30 Wyo. 186. Bentley v. Jenne, 33 Wyo. 1. Both parties claim title from the same source. The inquiry is whether either has title from that source. Hecht v. Boughton, 2 Wyo. 385. Atlas Ry. Co. v. Rowray, 51 Wyo. 318; Secs. 97-134, 92-135 R. S. Hawkins v. Stoffers, 40 Wyo. 226. One claiming a lien for taxes paid must have made actual payment. Laws 1937, Ch. 84, pg. 127. Plaintiff was under no obligation to allege or make a tender. 51 C. J. 228. Gage v. Caufman, 133 U.S. 471. The order of dissolution is not sustained by sufficient evidence.

For the defendants in error there was a brief by Hagens and Wehrli of Casper, and oral argument by Mr. Wehrli.

Injunction cannot be used for recovery of possession of real property. Casper Co. v. Inv. Co., 37 Wyo. 357. A purchaser at an invalid tax sale is entitled to reimbursement before he can be deprived of possession. Brower v. Kulien, 42 Wyo. 314; Brewer v. Folsom Co., 43 Wyo. 433, 517. He who seeks equity must do equity. Brewer v. Folsom Co., supra. 86 A. L. R. 1208. Holland v. Hotchkiss (Calif.) 123 P. 258. Beck v. Edmison (Calif.) 193 P. 158. 32 C. J. 68. Powers v. Bank (N. D.) 109 N.W. 361. Whitehead v. Trust Co., 98 F. 10 (8th). The oral discussion of the evidence by the trial judge will not be considered by the appellate court. Sewell v. McGovern, 29 Wyo. 62. Simpson v. Occidental B. & L. Assn. et al., 45 Wyo. 425. Deadwood Co. v. Walker, 46 Wyo. 428. The city has general authority to abate nuisances, Section 22-369, 22-374 R. S., and enact ordinances for such purpose. Town of Gallup v. Constant (N. M.) 11 P.2d 962. There is a difference between statutes delegating authority to municipalities to suppress nuisances, and statutes defining what shall constitute a nuisance and providing for its abatement, Stockwell v. State (Tex.) 221 S.W. 932. The ordinance here involved is valid, 43 C. J. 555, 2 McQuillin, Mun. Corp. (2d) Ed. 844, and is not subject to collateral attack, 3 McQuillin, Mun. Corp. (2d) Ed. 965, unless its invalidity appears on its face. 43 C. J. 199. Ferguson Co. v. Thompson (Ill.) 174 N.E. 896. Town of Green River v. Co., 65 F.2d 118. Public nuisances may be abated. Cummings v. Lobsitz (Okla.) 142 P. 93. Green v. Miller (N. Y.) 162 N.E. 593. Porter v. City (Ida.) 238 P. 1014. The presumption is that an ordinance is valid. Broughn v. Board (Calif.) 290 P. 140. The adoption of an ordinance constitutes a finding of all facts necessary to sustain it. Allen v. City of Los Angeles (Calif.) 291 P. 313. 19 R. C. L. 808. An action to quiet title cannot be maintained unless plaintiff is in possession. Sec. 89-3901 R. S. Plaintiff cannot obtain possession by injunction in order to maintain an action to quiet title. Alaska Co. v. Brennen, 40 Wyo. 106. Plaintiff cannot recover on the weakness of his adversary's title. Davis v. Baptist Convention, 45 Wyo. 148. A deed to a person by an assumed name is valid. 18 C. J. 176, 430. Bank v. Plank (Wis.) 124 N.W. 1000. Bank v. Co. (Wash.) 174 P. 1. McWhorter v. McWhorter (Calif.) 278 P. 454. Sanitation Co. v. Casper, 28 Wyo. 452. Defendant should not be disturbed in the exercise of a legal right without a probability that plaintiff may established his claim. Stowe v. Powers, 19 Wyo. 291. A temporary restraining order should be issued with caution. Sanitation Co. v. City, supra.

Heard before Riner, Chief Justice; Kimball, Justice; and Harry P. Ilsley, District Judge. RINER, Ch. J., and ILSLEY, Dist. J., concur.

OPINION

KIMBALL, Justice.

The proceeding is for review of an order vacating a temporary injunction.

The plaintiff in error, as plaintiff below, commenced the action on May 24, 1938. The petition stated three causes of action. The first was to quiet title to lots 16 to 20, inclusive, in Block 6, in the East Burlington Addition to the City of Casper, alleging that plaintiff was the "owner and in the possession" of the property, and that the defendants claimed an adverse estate or interest therein but had no estate or interest either in law or equity.

The second cause of action was for damages. It was alleged that on May 17, 1938, defendants "broke and entered upon the lands and the lands and the buildings and structures thereon situate, and have continuously" thereafter trespassed thereon, and "have taken down, and have demolished certain buildings upon said premises, and have exposed certain personal property of the plaintiff (and his tenants) therein and thereon to loss, destruction and damage, and have removed certain buildings, and parts of buildings, from the said premises, and then and there disturbed and continue to disturb plaintiff in the use and occupation of the said premises, and prevented him and continue to prevent him from the enjoyment of the same as he otherwise would have, all being to him damage in the sum of $ 1,000."

The third cause of action was for injunction. It repeated the allegations of defendants' unlawful entry on the property, and alleged that they "do continue to break and enter upon said lands and the buildings and improvements thereon * * * and are continuing to destroy, demolish and remove the buildings and other structures and improvements upon said lands, and to expose personal property of the plaintiff (and his tenants) therein and thereon, to loss, destruction and damage." It was alleged that defendants were insolvent; that unless restrained they would continue "the said unlawful entry upon and damage to the property of the plaintiff," and that "plaintiff's use and enjoyment of said real estate will be impaired and irreparably prejudiced and injured." It was further alleged that the mentioned improvements were certain buildings, machinery etc. for the refining of petroleum, and that "the value of the materials therein is but a small part of the value of the entire plant and structure erected and in place."

The prayer was that the title to the property be quieted in plaintiff; that he recover $ 1,000 damage "for the destruction, demolition and removal of the buildings and improvement * * * and for the loss, damage and destruction of the personal property," and for injunction.

The injunction order was made at the time of commencing the action on the petition positively verified, without previous notice to defendants. The order, which follows the prayer of the petition, provided in substance:

That defendants be restrained during the pendency of the action (1) "from in any manner whatsoever interfering with the plaintiff's possession" of the property; (2) "from removing from said premises any personal property thereon or therein," and (3) "from demolishing, destroying, or in any way whatsoever injuring the building and structures, or parts of them, situate on said described premises or from in any manner interfering with the said real estate, buildings, thereon situate or said personal property thereon and therein."

Thereafter defendants filed a motion to vacate the injunction. The grounds, briefly stated, were:

1. That defendants owned and were in actual, exclusive and peaceable possession of the property when the action was commenced.

2. That in 1934 the property had been acquired by Natrona County on a sale for delinquent taxes, and May 5, 1938 the county had sold and conveyed the property to defendants for $ 250, when there was due to Natrona County delinquent taxes amounting to $ 550, and that plaintiff had not paid or tendered any part of said taxes to defendants or to the county.

After a hearing on affidavits and other evidence the motion was granted and the injunction vacated by an order which plaintiff brings here for...

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7 cases
  • Elstermeyer v. City of Cheyenne
    • United States
    • United States State Supreme Court of Wyoming
    • August 19, 1941
    ......338; Hinton v. White, 3 Wyo. 754. As to tender, see Freeman on Judgments, Sec. 1193;. Gregory v. Ford (Cal.) 73 Am. Dec. 639; Huber v. Delong, 54 Wyo. 240. As to bona fide purchasers, see 15. R. C. L. 224; 34 C. J. 440; Pettis v. Johnston. (Okla.) 190 P. 692. Unless brought ......
  • BELLIS v. KERSEY
    • United States
    • United States State Supreme Court of Wyoming
    • October 26, 2010
    ...63 Wyo. 187, 208, 179 P.2d 773, 779 (1947)); see also Amick v. Elwood, 77 Wyo. 269, 277, 314 P.2d 944, 946-47 (1957), and Huber v. Delong, 54 Wyo. 240, 249-50, 91 P.2d 53, 56 (1939). [¶ 18] In the instant case, the Kerseys proved that the Bellises were in sufficient possession of the disput......
  • Bellis v. Kersey, Case Number: No. S-10-0013
    • United States
    • United States State Supreme Court of Wyoming
    • October 26, 2010
    ...63 Wyo. 187, 208, 179 P.2d 773, 779 (1947)); see also Amick v. Elwood, 77 Wyo. 269, 277, 314 P.2d 944, 946-47 (1957), and Huber v. Delong, 54 Wyo. 240, 249-50, 91 P.2d 53, 56 (1939). [¶18]In the instant case, the Kerseys proved that the Bellises were in sufficient possession of the disputed......
  • Hudson v. Erickson
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1950
    ...upon Brewer v. Kulien, 42 Wyo. 314, 294 P. 777, Denny v. Stevens, 52 Wyo. 253, 73 P.2d 308, 75 P.2d 378, 113 A.L.R. 1337, Huber v. v. Delong, 54 Wyo. 240, 91 P.2d 53. In these cases the tax title was attacked by the former owner of the property or his privy, and hence they are not in point ......
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