School District No. 11, Laramie County v. Donahue

• Decision Date: 09 January 1940
• Docket Number: 2146
• Citation: 97 P.2d 663,55 Wyo. 220
• Parties: SCHOOL DISTRICT NO. 11, LARAMIE COUNTY, ET AL. v. DONAHUE
• Court: Wyoming Supreme Court

97 P.2d 663

55 Wyo. 220

SCHOOL DISTRICT NO. 11, LARAMIE COUNTY, ET AL. v. DONAHUE

No. 2146

Supreme Court of Wyoming

January 9, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Suit in equity by School District No. 11, Laramie County, and the trustees thereof, against John Donahue for an injunction restraining defendant from interfering with removal of a school building from his wife's land to another location. From a judgment granting an injunction, defendant appeals.

Affirmed.

For the appellant, there were briefs and oral argument by Charles E Lane of Cheyenne.

A litigant is not entitled to equitable relief until he has established his legal rights. 14 R. C. L. 356. Remedy of one claiming title to real or personal property is by an action at law. Development Company v. Brannon, 40 Wyo. 126. Defendant's counterclaim was not questioned by motion or demurrer and the court erred in excluding evidence in support thereof. There was a failure of proof on the part of plaintiff, and the judgment should be reversed.

For the respondent, there was a brief by Greenwood & More of Cheyenne, and oral argument by Walter T. More.

It is impossible from defendant's answer to ascertain his contentions. The school building belonged to the school district as personal property and the school board had ordered it removed to another location, which removal was resisted by defendant, who thereby committed trespass against public property. 32 C. J. 136; New Elm Cong. v Hoessli, 13 Wis. 348. Injunctive relief was therefore proper. 14 R. C. L. 453; Church v. Sommer (Ala.) 43 So. 8; Brundage v. Deardorf, 55 F. 839, 92 F. 214. Equity will restrain a public nuisance. 14 R. C. L. 379; 40 A. L. R. 1158; State v. Ehrlick, 64 S.E. 934; Glasco v. McClain (Okla.) 103 P. 687; 32 C. J. 140. Plaintiff was in possession of the building situated on land belonging to defendant's wife. The building was an unattached fixture. 26 C. J. 679; Fischer v. Jones (Iowa) 76 N.W. 658. Plaintiff's ownership and possession was a question of law. 14 R. C. L. 356. The building was public property. 24 R. C. L. 569. The School Board had authority to remove it. Sec. 99-323, R. S. 1931; Laws of Wyoming 1937, Chapter 38. The granting of an injunction is discretionary in the trial court. 32 C. J. 33; Love v. Achison, 185 F. 321. The authorities cited by defendant are not in point. Defendant was not entitled to an injunction. Development Co. v. Brannan, 40 Wyo. 106; Jones v. MacKenzie, 122 F. 390 (C. C. A. 8th). The court properly excluded evidence under defendant's counterclaim. 37 C. J. 17. Denial of injunction was not an abuse of discretion.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This case, a direct appeal proceeding, brings here a controversy between the parties in regard to a small school building as it is affected by a judgment of the district court of Laramie County, Wyoming, in favor of School District No. 11 of said County, W. J. Hixenbaugh, Paul Rinehart and A. J. Wilson, as trustees of said School District, plaintiffs and respondents, and against John Donahue, defendant and appellant. The facts required to be considered at this time in view of the judgment in favor of the plaintiffs are in substance these:

The school building in question was erected by School District No. 5 of said Laramie County, and when School District No. 11 was created out of a portion of said District No. 5, this structure was turned over to and became the property of District No. 11, some ten or twelve years before March 1, 1939.

The building seems to have been located on the Southwest Quarter of Section 11, Township 18, Range 63, having been so located about eight years previous to the date last above set forth by the defendant Donahue, at the direction of two members of the then School Trustees of said School District No. 11. This arrangement was satisfactory to Donahue and conveniently located for his children to attend school therein. This school building was merely set upon the ground, with no foundation under it. The land upon which it was placed appears not to have been owned by the defendant Donahue, but by his wife, Pauline, she having purchased it about June 28, 1929. It is a fair inference that the land is, however, used as a part of the Donahue ranch property.

On June 21, 1938, School District No. 11 held its annual meeting, and it was voted at that time and at that meeting to move said building "half way between the E-7 Ranch and the Donahue house." July 9, 1938, Donahue submitted to the District a written bid, for a stated sum, to move the school building from its present location to the new one designated by the School District meeting. This offer, it seems, was not accepted by the officials of School District No. 11, and when they subsequently and prior to August 20, 1938, went to see Donahue and arrange for his permission to enter upon the land and move the building to the new proposed site, Donahue declined to allow them so to do without a "court order." His wife appears not to have objected in any way to the removal of the school building. When the officials of the District discovered that the building owned by it could not be made available for the school term of 1938-39, they caused another smaller temporary frame structure owned by said District to be transferred to the proper location, and this appears to have been used during the school year aforesaid for the purpose of conducting school therein, enabling the District to "get by" through its use, although the commencement of school was in consequence delayed some two weeks and two days.

Thereafter and about August 20, 1938, the plaintiffs instituted suit against Donahue, praying that an injunction be issued restraining him from interfering with the due removal of said school building from its present location to that designated by the vote at the meeting of the District held the preceding month of June, as above related. Defendant filed his answer in response to this pleading and plaintiffs a reply thereto.

The defendant contends that an injunction may not be sought in a case of this kind and that this remedial process may not be employed to transfer the possession of real or personal property from one party to another, and refers us to the decisions of this court in Casper, Wyoming, Theaters Co. et al. v. Rex Investment Co., 37 Wyo. 357, 261 P. 908, and Alaska Development Co. v. Brannan, 40 Wyo. 106, 275 P. 115. We do not consider these cases to be in point in this litigation for several reasons. They presented no such factual matters as are now at bar. Under all the circumstances in this case, we think it evident that the school house in question was never affixed to the realty where it was placed so as to become a part thereof.

In O'Neil v. Quilter, (Tex. Civ. App.) 236 S.W. 116, it was held that there is a presumption that a dwelling house erected upon land by a temporary tenant or licensee is personal property and belongs to the tenant, who may remove the same, and that the intent of the party constructing the building controls as to the right of removal. See also Rogers v. Vanderbilt, 175 Ark. 977, 1 S.W.2d 71; Pennington v. Black, 261 Ky. 728, 88 S.W.2d 969.

Said the court in Carlin v. Ritter et al., 68 Md. 478, 13 A. 370, 16 A. 301:

"From the testimony, the ice house appears to be simply a wooden structure or building resting by its own weight on flat stones laid upon the surface of the ground. The earth was not excavated for the purpose of holding the ice, nor was there any other foundation for the building than the stones referred to. Wansbrough v. Maton, 4 Ad. & El. 884, was a case where a wooden barn was erected on a foundation of brick and stones let into the ground, on which the barn rested by weight alone, and all the Judges of the King's Bench held it was not a fixture at all. Lord Denman, C. J., said:

"'Questions as to fixtures generally arise between the prima facie right of the landlord on the one hand, and exceptions in favor of trade or of tenants on the other. But the first question must be whether the erection be a part of the freehold. If it be not united to the freehold we cannot say that it is a part of it; and here it is not so united and, therefore, not a fixture.' Many other authorities to the same effect might also be cited, but we deem this one sufficient. The cow stable and carriage covering seem also to be wooden structures of the same character, and not more united to the freehold than the ice house."

In Bond Investment Co. v. Blakeley, 83 Cal.App. 696, 257 P. 189, it was indicated that whether structures were permanent fixtures on land must usually be determined from the particular facts of each case, and this we take to be a reasonable and safe rule in regard to matters of that character.

It is plain also that in Alaska Development Company v. Brannan supra, this court was discussing the subject of "ordinary personal property" only. In the case at bar we have a situation involving public property, i. e., a school house. The defendant, Donahue, testified that he had never occupied or used it and that he had never attempted to exercise any authority over it. It was not upon his land, and his wife had never made any claim to it. It would, therefore, seem clear that the structure was personal property, and that the school district was at all times in possession thereof, notwithstanding the fact that actual school work in the building had been temporarily discontinued over several school terms. Under such circumstances, it is evident that the School District, being a mere temporary tenant or licensee, so far as the location of the building is concerned upon the land where it was placed, it...