Smith v. Alberta & British Columbia Exploration or Reclamation Co.

• Decision Date: 31 December 1903
• Parties: SMITH v. ALBERTA AND BRITISH COLUMBIA EXPLORATION AND RECLAMATION COMPANY
• Court: Idaho Supreme Court

74 P. 1071

9 Idaho 399

SMITH v. ALBERTA AND BRITISH COLUMBIA EXPLORATION AND RECLAMATION COMPANY

Supreme Court of Idaho

December 31, 1903

INJUNCTION-WHEN SHOULD NOT BE DISSOLVED ON MOTION-NONRESIDENT OR FOREIGN CORPORATIONS MUST COMPLY WITH STATE CONSTITUTION BEFORE DOING BUSINESS IN THE STATE.-Where it is shown on motion to dissolve an injunction before answer, by the employee of the real party in interest, that his damage would result solely from stopping his work, and that the undertaking is insufficient to compensate him, the motion will be denied, he having his remedy for damages against his employer. A foreign or nonresident corporation before doing business in this state must comply with section 10, article 11, of the state constitution.

(Syllabus by the court.)

APPEAL from the District Court of Kootenai County. Honorable A. E Mayhew, Judge.

Judgment on order sustaining motion to dissolve injunction, from which appellant appeals. Judgment reversed.

Reversed and remanded. Costs to appellant.

Charles L. Hietman, for Appellant.

Under section 4295, Revised Statutes of Idaho where an injunction is granted without notice, the defendant may move to dissolve the injunction, and in such case the application may be made upon the complaint and the affidavit on which the injunction was granted, or the answer or upon affidavits upon the part of the defendant, with or without the answer. In the case at bar no application whatever was made, no moving papers whatever were filed and served, by or on behalf of the principal defendant corporation, the party who was constructing the dike or embankment, the completion of which had been enjoined. "It is an ancient and well-settled rule that where there are several defendants, all of whom are implicated in the same charge, no motion to dissolve the injunction on the ground that the equity of the bill has been denied by the answer can be made until all the defendants have answered." (10 Ency. of Pl. & Pr. 1078, citing many cases. See, also, Noble v. Wilson, 1 Paige, 164; Fulton Bank v. Beach, 2 Paige, 307; Depeyster v Graves, 2 Johns. 148.) The second ground of appellant's said motion to strike was that the defendants, Burns & Jordan, who alone moved to dissolve the injunction, entered a special and limited appearance only. A party moving to dissolve an injunction must enter a general appearance. An application to dissolve a temporary injunction may be made by a defendant as follows: 1. Upon the papers upon which plaintiff obtained the injunction; 2. Or upon answer or affidavits with or without the answer; 3. Section 4295, Revised Statutes of Idaho. (Thayer v. Bellamy ante, p. 1, 71 P. 544.) The third ground of appellant's motion to strike was that the motion of Burns & Jordan to dissolve the injunction did not specify any grounds upon which said motion would be made. It is a well-settled rule of practice that the courts will not consider any motion unless the grounds upon which it is based are specifically set forth in the motion and notice thereof notice of which must be given to the opposite party. (Freeborn v. Glazer, 10 Cal. 337; Loucks v Edmondson, 18 Colo. 203; Donnelly v. Strueven, 63 Cal. 182; Zenith Min. Co. v. Irvine, 32 Cal. 303; Packer v. Doray, 98 Cal. 315, 33 P. 118; Omaha Co. v. Chauvin Co., 18 Mont. 468, 45 P. 1087; Cupit v. Bank, 10 Utah 294, 37 P. 565.) It is well settled that an injunction will not be dissolved where the principal and real party in interest is not before the court asking for a dissolution. (10 Ency. of Pl. & Pr. 1078, and cases cited.) Section 10, article 11, Idaho Constitution, reads as follows: "Sec. 10. No foreign corporation shall do any business in this state without having one or more known places of business and an authorized agent or agents in the same upon whom process may be served, and no company or corporation formed under the laws of any other country, state or territory shall have or be allowed to exercise or enjoy within this state any greater rights or privileges than those possessed or enjoyed by corporations of the same or similar character created under the laws of this state." The framers of the constitution meant that these words should be taken seriously, and that they should not be disregarded and ignored by the creatures of foreign states. The defendant corporation, in the case at bar, without license and without authority, engages in the construction of an extensive work in this state; a work which changes the topography of a considerable section of country, and which must necessarily, from the facts as testified to in this cause, and from the precedent established by a former work of a similar character at a greater distance from the lands of the plaintiff, inflict great loss and damage to, if not total destruction of, the property of the plaintiff and other citizens of the United States in the Kootenai valley. And yet the same corporation refuses to recognize the simple and just requirements of our state constitution, and to place itself in such a position as would enable any of our citizens, wronged by the contractual or tortious acts of the defendant, to bring the defendant within the jurisdiction of our courts where relief might be obtained. Constitutional provisions regulating foreign corporations will be enforced. (Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357; New York v. Roberts, 171 U.S. 662, 19 S.Ct. 58, 43 L.Ed. 324; Williams v. Mining Co., 96 F. 454.) The state will protect its own citizens, and if any preference is to be shown in its courts, that preference will be given to our own citizens. (Barnett v. Kinney, 147 U.S. 477, 13 S.Ct. 403, 37 L.Ed. 248; Security Trust Co. v. Dodd-Mead & Co., 173 U.S. 625, 19 S.Ct. 545, 43 L.Ed. 835; Happy v. Prickett, 24 Wash. 290, 64 P. 529; Thum v. Pyke, 8 Idaho 11, 66 P. 157; Cook on Stock and Stockholders, 3d ed., sec. 867; Halsted v. Straus, 32 F. 279.) The supreme court of Georgia, in the case of O'Connell v. Railway Co., 87 Ga. 246, 27 Am. St. Rep. 246, 13 S.E. 489-493, 13 L. R. A. 394, in an elaborate opinion, lays down the rule that no company or individual can erect an embankment along the margin of a river, the accumulated waters of which, in times of flood, had previously escaped on that side, it being lower than the other, but which thereafter, and because of the embankment, overflowed the opposite side more than it had done before, and thus injured the lands there situate. The owner has a right of action against the company or individual constructing the embankment. The lands of the defendant corporation in British Columbia immediately south of the international boundary line between Canada and the United States are lower than the lands of the plaintiff in Idaho and the waters of Boundary creek and the big slough naturally and originally flowed northward off and away from the lands of the plaintiff and from the lands of the defendant. Therefore, a natural easement existed in favor of the plaintiff, he being the owner of a higher tract, to have the water flow over the lands below, and he undoubtedly has the right to have the waters in the stream mentioned flow in their original channel, and defendants have no right to deflect the course of said streams and divert the waters therein in such manner as to flood and thereby damage the lands of the plaintiff. (Gray v. McWilliams, 98 Cal. 157, 35 Am. St. Rep. 167, 32 P. 976, 21 L. R. A. 593; Shields v. Arndt, 4 N. J. Eq. 234; Rudell v. Los Angeles, Co., 118 Cal. 282, 50 P. 400; Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11; Railroad v. Eisentraut, 134 Ill. 96, 24 N.E. 760; Railway v. Thillman, 143 Ill. 127, 36 Am. St. Rep. 359, 32 N.E. 529; Grant v. Kuglar, 81 Ga. 637, 12 Am. St. Rep. 348, 8 S.E. 878, 3 L. R. A. 606; Tillotson v. Smith, 32 N.H. 90, 64 Am. Dec. 355; Merritt v. Parker, 1 N.J.L. 530; Gould on Waters, sec. 213; Norris v. Glenn, 1 Idaho 590; Noyes v. Cosselman, 29 Wash. 635, 92 Am. St. Rep. 937, 70 P. 61.) The diversion or obstruction of a water-course has been the subject of frequent equitable interference by way of injunction, both in England and in America. (Gould on Waters, sec. 534, and cases cited; Treat v. Bates, 27 Mich. 390.) Where the complaint alleges great and irreparable injury to growing crops and that the damage cannot be justly estimated, injunctive relief is the proper remedy. (Wilson v. Eagleson, ante, p. 17, 71 P. 613.) Under section 4288, Revised Statutes, a temporary injunction is authorized to restrain a trespass. Injunction is largely a matter of right under Idaho statute. (Staples v. Rossi, 7 Idaho 618, 65 P. 67.) This is a suit for equitable relief alone, and the interference of the court by injunction is the sole relief sought. To dissolve a temporary injunction in a case like the one at bar is to decide the case on the merits, which leaves the plaintiff during the litigation absolutely without protection. (Africa v. Board etc., 70 F. 740; Friedlander v. Ehrenworth, 58 Tex. 350; 2 Spellman on Injunctions, sec. 1057.) The fourth specification of insufficiency of the evidence is to the effect that all of the defendants are nonresidents of this state and have no property whatever in the state. That the damage to plaintiff's lands by reason of the construction and maintenance of the proposed dike will be in the nature of a trespass on real estate, and that plaintiff can maintain no action for damages against any of the defendants without the state of Idaho and that it would be practically impossible for him to obtain jurisdiction of the persons of the defendants in order to institute action for damages in the Idaho courts, and he would be without any remedy. An action of trespass for flowing lands is local, and a local action must, of course be brought, not only within the state, but...