Rowland v. Kellogg Power & Water Co.

• Citation: 233 P. 869,40 Idaho 216
• Court: United States State Supreme Court of Idaho
• Decision Date: 03 January 1925
• Parties: THOMAS L. ROWLAND, Respondent, v. KELLOGG POWER & WATER COMPANY, a Corporation, Appellant

233 P. 869

40 Idaho 216

THOMAS L. ROWLAND, Respondent, v. KELLOGG POWER & WATER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

January 3, 1925

RESTRAINING ORDER-PRELIMINARY INJUNCTION-SUFFICENCY OF COMPLAINT TO JUSTIFY INJUNCTION-MOTION TO DISSOLVE INJUNCTION-DISCRETION OF COURT-UNDERTAKING-LIABILITY OF SURETIES.

1. On an application for a preliminary injunction, if the plaintiff has made out a prima facie case, or if from the pleadings and the conflicting affidavits it appears to the court that a case is presented proper for its investigation on a final hearing, a preliminary injunction may issue to preserve the status quo.

2. In an action for an injunction the complaint need not allege the insolvency of the defendant in order to warrant the granting of injunctive relief.

3. Where the allegations of a complaint are sufficient to warrant the granting of injunctive relief prayed for, the granting thereof rests in the sound discretion of the trial court, and will not be disturbed unless abused.

4. Held, that the allegations of the complaint in this case are sufficient to warrant the granting of the injunctive relief prayed for.

5. A preliminary injunction should not be dissolved where the effect of such order would be to give the defendant the relief he seeks without bringing the cause to trial, and the exercise of the court's discretion in refusing to grant defendant's motion for dissolution will not be disturbed except upon a clear showing that such discretion has been abused.

6. Where a temporary restraining order is by the order of the court continued in full force and effect as an injunction pendente lite, the bond originally given conditioned on the issuance of the temporary restraining order cannot be so continued in force as to hold the obligors to respond in costs, damages and reasonable attorney fees by reason of the granting of the injunction, unless the terms and conditions of the bond so provide.

7. The liability of a surety upon a bond conditioned on the issuance of a temporary restraining order or on an injunction pendente lite is measured by the terms of the contract contained in the instrument.

8. A temporary injunction which provides that the restraining order theretofore issued be continued in full force and effect during the pendency of the action and until the further order of the court is inoperative in the absence of the proper undertaking as required by C. S., sec. 6772.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action for injunction. From order granting injunction pendente lite defendant appeals. Remanded with instructions to fix amount of bond.

Cause remanded, with instructions. Costs awarded to appellant. Petition for rehearing denied.

James F. Ailshie, James F. Ailshie, Jr., and Lester S. Harrison for Appellant.

An allegation in a complaint that plaintiff is the owner of certain property "together with certain water right" is not sufficient, as it is incumbent on the plaintiff to allege and prove his title; and in the absence of such evidence he is not entitled to an injunction. ( Hamilton v. Adams, 15 Ala. 596, 50 Am. Dec. 150; Gray v. Malone, 142 Ark. 609, 219 S.W. 742.)

A complaint for injunction should be sufficiently certain to negative every reasonable inference from the facts stated which would preclude the relief sought. (Hannah v. Russ (Tex. Civ.), 238 S.W. 333; Emde v. Johnson (Tex Civ.), 214 S.W. 575; Fort Worth & D. C. Ry. Co. v. Craig (Tex. Civ.), 176 S.W. 827; Kell Milling Co. v. Bank of Miami (Tex. Civ.), 168 S.W. 46.)

In order to justify the issuance of either a temporary restraining order or an injunction pending the action on the complaint alone, the complaint should be verified as an affidavit upon the knowledge of the one who verifies it, and it is not sufficient to verify it on belief only. (Price v. Grice, 10 Idaho 443, 79 P. 387; Hecht v. Freisleben, 28 S.C. 181, 5 S.E. 475; Armstrong v. Freisleben, 28 S.C. 605, 5 S.E. 479; Burmester v. Moseley, 33 S.C. 251, 11 S.E. 786; Riley v. Treanor (Tex. Civ.), 25 S.W. 1054; Willis v. Lauridson, 161 Cal. 106, 118 P. 530.)

A restraining order becomes functus officio upon the hearing on the order to show cause, and the obligations of the undertaking given in support of such restraining order do not extend beyond that date; therefore an order of the court granting an injunction pendente lite and continuing the undertaking in force cannot alter or extend the terms of the sureties' contract and liability. (Scholtz v. American Surety Co., 35 Idaho 207, 206 P. 187, and cases cited; Ex parte Zuccaro, 106 Tex. 197, Ann. Cas. 1917B, 121, and note at page 123, 163 S.W. 579.)

James A. Wayne, for Respondent.

In a suit for an injunction, the complaint need not allege the insolvency of the defendant, or irreparable damage to the plaintiff. (Staples v. Rossi, 7 Idaho 618, 65 P. 67; Wilson v. Eagleson, 9 Idaho 17, 108 Am. St. 110, 71 P. 613.)

An allegation in a complaint for an injunction that plaintiff is the owner, in possession and entitled to the possession of the property described is a sufficient allegation of right in the plaintiff to bring the suit. (Louisville & N. R. Co. v. Scomp, 124 Ky. 330, 98 S.W. 1024; Prey v. Oemler, 120 Ga. 223, 47 S.E. 546; Fletcher v. Fletcher, 123 Ga. 326, 470, 51 S.E. 418.)

The granting of a temporary restraining order, even upon a complaint the material allegations of which are denied by the defendant, is within the discretion of the trial court. ( Price v. Grice, 10 Idaho 443, 79 P. 387; Shields v. Johnson, 10 Idaho 454, 79 P. 394; Roberts v. Kartzke, 18 Idaho 552, 111 P. 1; Angell v. Continental Oil Co., 19 Idaho 746, 115 P. 692; Boise Dev. Co. v. Idaho etc. Bank, 24 Idaho 36, 133 P. 916.)

BUDGE, J. McCarthy, C. J., William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, J.

On July 21, 1923, respondent commenced an action against appellant to enjoin the latter, pending the final determination of the action, and thereafter permanently, from obstructing or cutting off the water and water supply used by respondent for a long period of years, conducted to and upon his premises through pipes and conduits. After alleging the corporate existence of appellant, respondent alleges:

"That the plaintiff now is, and at all times since April 10, 1918, has been the owner, in the possession of, and entitled to the possession of all of the following described property, to-wit: All of Lot No. 13 in Block No. 20 in the City of Wardner, according to the plat of said City of Wardner, County of Shoshone, and State of Idaho, which plat is now on file in the office of the County Recorder at Wallace, Idaho; together with certain water right acquired from the Kellogg Power & Water Company, the defendant herein. That plaintiff claims title to the above described property under and by virtue of an instrument in writing, to-wit: a Warranty Deed therein, dated the 10th day of April, 1918, from Stanly A. Easton to this plaintiff, which said deed was duly recorded on May 20, 1918, in Book 52 of Deeds, at page 567 thereof, records of Shoshone County, Idaho. "

Respondent also alleges title to the above-described property for a period of more than five years immediately following the tenth day of April, 1918, and for a period of fifteen years prior to the commencement of the action, by adverse possession and particularly alleges:

"That the water owned by this plaintiff, and secured him as hereinbefore set forth, was at all the times herein mentioned conducted to the dwelling-house and buildings upon plaintiff's aforesaid lands and premises by means of pipes or conduits situated upon the lands and premises of plaintiff hereinbefore described. That on the 18th day of July, 1923, the defendant, acting through its agents and servants, and without the consent of this plaintiff, entered upon his aforesaid lands and premises and intentionally and maliciously, and with force and violence disconnected the aforesaid water-pipes or conduits and in some manner shut off the supply of water running through said pipes and conduits, so that the said water was no longer conducted to and into the dwelling-house and buildings of the plaintiff."

It is further alleged in this connection that the appellant would, unless restrained, continue to shut off the water supply as heretofore stated and respondent would be deprived of the use thereof for domestic purposes, for fire protection and for irrigation purposes or any use or purpose whatsoever. Respondent alleged that he had no plain, speedy or adequate remedy at law and prayed that appellant, its agents, attorneys, servants and employees be restrained from further interfering with his right to the use of his premises and the right to the use of the water theretofore enjoyed by him pending a final determination of the action, and upon the trial thereof that appellant be permanently enjoined from in any manner obstructing or interfering with the possession, occupation and use of such property and premises and water supply of respondent.

To the complaint, on August 2, 1923, appellant filed a general demurrer but no action was taken thereon and no answer was filed in the case. Upon the filing of the complaint and upon motion duly made an order to show cause and a restraining order was issued by the trial court. The restraining order prohibited appellant, its agents, attorneys and employees, from obstructing or cutting off the water supply theretofore enjoyed by respondent and from in any manner interfering with the possession, occupation and use of said property and the water right and supply of respondent. The restraining order was to become effective upon the filing of an...