Snyder v. Hopkins

• Decision Date: 06 March 1884
• Citation: 31 Kan. 557,3 P. 367
• Parties: JOHN SNYDER AND ESTELLA SNYDER v. JAMES K. HOPKINS
• Court: Kansas Supreme Court

3 P. 367

31 Kan. 557

JOHN SNYDER AND ESTELLA SNYDER v. JAMES K. HOPKINS

Supreme Court of Kansas

March 6, 1884

Error from Allen District Court.

EJECTMENT brought by Hopkins against Snyder and another. August 28 1883, plaintiff obtained a temporary injunction restraining the defendants from any beneficial use of the land in controversy pending the litigation. To reverse the order granting the injunction the defendants have come to this court. The opinion states the case.

A. C Bogle, and C. F. Hutchings, for plaintiffs in error.

J. H Richards, and A. A. Harris, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action of ejectment, brought by defendant in error, plaintiff below, in the district court of Allen county. In addition to his prayer for possession, plaintiff asked a temporary injunction restraining the defendants from any beneficial use of the land pending the litigation. On the hearing of this application for a temporary injunction, the district judge made the following order:

"That the defendants herein, upon the execution of a bond in the sum of $ 800, conditioned as the law directs, by the plaintiff, be, and each one and all of them are hereby enjoined, until the further order of this court, or the judge thereof, from in any manner disturbing or plowing up the uncultivated or unimproved lands, to wit, the southeast quarter of section twenty-two (22), township twenty-four (24), range twenty (20), Allen county, Kansas, or destroying the sod thereof, or pasturing cattle, horses or other stock thereon, and from building any houses, fences or other improvements on said land or any portion thereof. The defendants are also enjoined from running wagons or other agricultural implements, or teams of horses, or other stock over the lands described in the petition, except for the purpose of reaping and harvesting the growing crops of grain, hay and fodder that naturally grow upon the uncultivated lands, or that have been grown and raised upon the lands under cultivation by the defendants, or that may hereafter be grown and reaped by them on such cultivated land before the final determination of this suit; subject however to the rights of the plaintiff, if he have any, to recover for occupation the rents and profits of such land by defendants."

To reverse this order, defendants have come to this court. On the hearing of the application, plaintiff produced a plain and connected chain of title from the government. It also appeared that about two years prior to the commencement of this action, the land being then vacant and unoccupied, defendants entered and took possession, erected a house, broke up about fifty acres, and made other improvements, and have since used the land for farming purposes.

The petition verified by the plaintiff, and used in the hearing as an affidavit, alleged that the land was specially adapted and was intended by the owner for the production of grass and hay; that in its natural state it was covered by a firm and permanent sod, and that the native grass was more valuable and permanent, and better adapted for the purpose for which the land was set apart and intended, than tame grass, and that the breaking up of the sod would materially injure its value; and further, that the defendants were irresponsible.

Under the showing as made, the plaintiff was the owner, and the defendants were trespassers. Under those circumstance, was the temporary injunction as granted, proper? Obviously, we think the order was too broad. Doubtless injunction will lie at the instance of the owner, to restrain the cutting down of timber, the quarrying of rock, mineral,...