Ryan v. Weiser Valley Land & Water Co.

• Decision Date: 03 October 1911
• Court: Idaho Supreme Court
• Parties: FRANK D. RYAN, Respondent, v. WEISER VALLEY LAND & WATER CO., Appellant

118 P. 769

20 Idaho 288

FRANK D. RYAN, Respondent, v. WEISER VALLEY LAND & WATER CO., Appellant

Supreme Court of Idaho

October 3, 1911

INJUNCTION-TRESPASS-JURISDICTION-STATE AND FEDERAL JURISDICTION-CONFLICT OF JURISDICTION-LACHES AND ESTOPPEL-MANDATORY INJUNCTION.

(Syllabus by the court.)

1. Where a water company has constructed a dam across a stream for the purpose of impounding water, and the dam or structure results in the flooding of the lands of another, and an action for condemnation of such land is thereafter prosecuted in the federal court, and a judgment is entered in favor of the land owner for the value of the land taken, and the company thereupon appeals to the United States circuit court of appeals, the state court has the jurisdiction to issue an injunction to restrain such company from flooding and submerging the land sought to be condemned until such time as the value thereof has been paid to the land owner or into court for his use and benefit as provided by law. In such case, there is no conflict of jurisdiction between the state and the federal courts, and no rule of law or comity requires the state court to desist or refrain from taking jurisdiction for the purpose of protecting the land owner in his ownership and right of possession.

2. Under the facts disclosed in this case, held that no such laches are shown as to constitute an estoppel against the land owner, and that no facts or circumstances are disclosed which would preclude or estop the land owner from pursuing the equitable remedy for relief by injunction.

3. Under the constitution and laws of this state, the condemnor cannot acquire any right or interest in the lands of another which would entitle him to the possession and occupation thereof against the will and without the consent of the land owner, until he first pays such just compensation as may be ascertained in the manner prescribed by law.

4. No title can pass to the condemnor in condemnation proceedings until after the payment of the value of the property which has been determined and assessed in the manner prescribed by law.

5. Where a person seeking to condemn a tract of land for a public use has entered upon and taken possession of the land without paying for the same and without the consent of the land owner, he cannot defend in a suit for injunction to restrain him from continuing his occupation and possession thereof, on the ground that the land is of little or no value to the land owner, and that the necessity for the use and occupation thereof by the party seeking to condemn is great or imperative.

6. As a general proposition, a mandatory injunction will not lie to compel the destruction of buildings or structures prior to a hearing and determination of the case on its merits.

7. Under the facts and circumstances of this case, held, that the alternative order and injunction made and entered in this case was not an abuse of the power of the court, and the discretion vested in courts of equity.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action by plaintiff for an injunction to restrain the defendant from continuing to trespass upon plaintiff's land and to flood and overflow the same. From a temporary restraining order pendente lite, defendant appealed. Affirmed.

Order affirmed. Costs awarded in favor of the respondent. Petition for rehearing denied.

Richards & Haga, for Appellant.

"Where jurisdiction has attached to person or thing, it is (unless there is some provision to the contrary) exclusive in effect until it has wrought its function." (Taylor v Taintor, 16 Wall. (U.S.) 366, 21 L.Ed. 287; Peck v Jenness, 7 How, (U.S.) 612, 12 L.Ed. 841; Covell v Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390; Heidritter v. Oil Cloth Co., 112 U.S. 299, 5 S.Ct. 135, 28 L.Ed. 729.)

The federal court cannot place appellant in possession of the land upon payment of the judgment without violating the injunction of the state court. That the bringing of this suit in the state court interferes with the jurisdiction of the federal court is so apparent that no argument is required. ( B. & O. Ry. Co. v. Wabash Ry. Co., 119 F. 678; Starr v. Chicago R. I. & T. Co., 110 F. 3; Wallace v. McConnell, 13 Pet. (U.S.) 135, 10 L.Ed. 95; 11 Cyc. 1003; Provost v. Millard, 3 Ore. 370.)

Where a preliminary injunction, mandatory in character, will have the effect of granting to the plaintiff all the relief that he could obtain upon a final hearing, it should be denied, except in very rare cases, and then only where the plaintiff's right to the relief is clear and certain. (11 Cyc. 743; Audenried v. Phila. & Reading Ry. Co., 68 Pa. 370, 8 Am. Rep. 195; Murdock's Case, 2 Bland (Md.), 469, 20 Am. Dec. 381; Beck v. New York & S. Ry. Co., 77 N.Y.S. 357, 74 A.D. 626; Ladd v. Flynn, 90 Mich. 181, 51 N.W. 203; World's Col. Ex. Co. v. Brennan, 51 Ill.App. 128; Am. L. P. Co. v. Schneegass, 178 F. 735.)

"The right to an injunction may be lost by delay during which the defendant has expended large sums of money and the public have acquired an interest." (Lewis, Eminent Domain, p. 1516; N. P. Ry. Co. v. Smith, 171 U.S. 260, 18 S.Ct. 94, 43 L.Ed. 157; Roberts v. N. P. R. Co., 158 U.S. 1, 15 S.Ct. 756, 39 L.Ed. 873; Miocene Ditch Co. v. Jacobsen, 146 F. 680, 77 C. C. A. 106; Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 695, 18 S.Ct. 223, 42 L.Ed. 631; Logansport v. Uhl, 99 Ind. 540, 49 Am. Rep. 109; Holt v. Parsons, 118 Ga. 895, 45 S.E. 690; So. Marble Co. v. Darnell, 94 Ga. 231, 21 S.E. 531; 1 High on Injunctions, 3d ed., secs. 549, 618; Beers v. C. M. & St. P. Ry. Co., 141 F. 957, 73 C. C. A. 273; Attorney General v. R. R. Co., 24 N.J. Eq. 49; McKee v. Grand Rapids, 137 Mich. 200, 100 N.W. 580; Hendrix v. So. Ry. Co., 130 Ala. 205, 89 Am. St. 27, 30 So. 596; Midland Ry. Co. v. Smith, 113 Ind. 233, 15 N.E. 256; Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. 35, 70 P. 663, 74 P. 766, 64 L. R. A. 236; New York v. Pine, 185 U.S. 93, 22 S.Ct. 592, 46 L.Ed. 820; West & Co. v. Octoraro Water Co., 159 F. 528.)

Lot L. Feltham, and Frank D. Ryan, for Respondent.

The injunction suit in the state court can in no way interfere with the federal court in doing everything to carry into effect the judgment of condemnation. (Union Mutual Life Ins. Co. v. Kirchoff, 149 Ill. 536, 36 N.E. 1031; St. Jos. Fire & Marine Ins. Co. v. Leland, 90 Mo. 177, 59 Am. Rep. 9, 2 S.W. 431; Buck v. Colbath, 70 U.S. 334, 18 L.Ed. 257.)

Mandatory injunctions are quite frequently granted on preliminary hearings, where the facts are little in dispute and where the right to an injunction on final hearing is clear and the defendant's condition would be little changed by further evidence. (1 High on Injunctions, 3d ed., p. 4; Broome v. N.Y. & N. J. Co., 42 N.J. Eq. 141, 7 A. 851.)

Injunction is a proper remedy in cases of trespass like the case at bar or for the abatement of a nuisance. (La Vaine v. Stack-Gibbs Lumber Co., 17 Idaho 51, 134 Am. St. 253, 104 P. 666; Wilson v. Eagleson, 9 Idaho 17, 108 Am. St. 110, 71 P. 613.)

"The appellant cannot lawfully appropriate respondent's property to its own use in this way." (Shephard v. Coeur d' Alene Lbr. Co., 16 Idaho 293, 101 P. 591.)

Idaho has a statute on injunctive relief that is unusually broad. "Injunction will issue to restrain temporarily an act which will result in great damage to the plaintiff, although the injury is not irreparable, and notwithstanding other remedies lie in behalf of plaintiff." (Staples v. Rossi, 7 Idaho 618, 65 P. 67; Price v. Grice, 10 Idaho 443, 79 P. 387.)

"A party is not under the necessity of waiting until his property has been damaged and destroyed, and his business disorganized, and his premises encroached upon to the extent of his ouster, and then resort to an action at law for his redress." (Meyer v. First Nat. Bank, 10 Idaho 175, 77 P. 334; Smith v. Alberta etc. Reclamation Co., 9 Idaho 399, 74 P. 1071; Montpelier Milling Co. v. City of Montpelier, 19 Idaho 212, 113 P. 741.)

Respondent was not estopped to seek injunctive relief by inaction while improvements were being made. (Mashburn v. St. Joe Improvement Co., 19 Idaho 30, 113 P. 92.)

"A corporation armed with the power of eminent domain has no power to enter upon and take possession of the premises sought to be condemned until it either pays to the owner of the property the amount assessed and found as damages by commissioners duly appointed, or, in case the owner refuses to accept the award, has paid the same to the clerk of the court to abide the result of the action." (Pyle v. Woods, 18 Idaho 674, 111 P. 746; Portneuf Irr. Co. v. Budge, 16 Idaho 116, 100 P. 1046; Cherokee Nation v. Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295; State ex rel. McClellan v. Graves, 19 Md. 351, 81 Am. Dec. 639; 15 Cyc. 926.)

"The plea of public inconvenience is no answer to the prayer for this remedy (injunction), since the public good derives no permanent rights in private property except on payment of the just compensation guaranteed by the constitution." (Lewis, Eminent Domain, p. 1536; Evans v. Missouri, Iowa & Nebr. Ry. Co., 64 Mo. 453; Cilly v. Cincinnati, 7 Ohio Dec. (Reprint) 344; Proskey v. Cumberland Realty Co., 35 Misc. 50, 70 N.Y.S. 1125; Sullivan v. Jones etc. Steel Co., 208 Pa. 540, 57 A. 1065, 66 L. R. A. 712.)

"The granting of a preliminary restraining order during the pendency of the action is within the sound discretion of the court." (Angell v. Continental Oil Co., 19 Idaho 746, 115 P. 692.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from an order granting a temporary injunction. The plaintiff, Frank D. Ryan, commenced an action in the trial court against the ...