Staples v. Rossi

• Decision Date: 16 May 1901
• Citation: 7 Idaho 618,65 P. 67
• Parties: STAPLES v. ROSSI
• Court: Idaho Supreme Court

65 P. 67

7 Idaho 618

STAPLES v. ROSSI

Supreme Court of Idaho

May 16, 1901

CONSTITUTIONAL LAW-ACTIONS AT LAW AND IN EQUITY-By section 1, article 5, of the constitution of Idaho, the distinction between actions at law and equitable actions has been largely, if not wholly abrogated.

INJUNCTION-STATUTORY REMEDY.-Under section 4288 of the Revised Statutes, a temporary injunction is authorized to restrain a trespasser from removing timber which he has cut upon land claimed by the plaintiff, pending suit to establish plaintiff's title.

SAME.-The ancient rules of chancery relating to the remedy of injunction have been greatly modified by statutes, as well as by the trend of modern decisions.

SAME.-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 that other remedies lie in behalf of plaintiff.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Affirmed. Costs awarded to respondents.

Fremont Wood and W. E. Borah, for Appellants.

The controversy relates only to certain timber which has been and was prior to the granting of the injunction, severed from the realty. The defendants had cut certain trees from and banked them upon disputed mining claims, and they are now enjoined from removing the same and utilizing them, although as we urge, the record discloses that the defendants were wholly solvent and further discloses that an action of replevin would also have afforded full and adequate relief. (Heaney v. B. & M. Co., 10 Mont. 590, 27 P. 379; Bridges v. Sargent, 1 Kan. App. 442, 40 P. 823.) An injunction will not be allowed against the removal of timber already cut on the premises, since it has ceased to be a part of the realty, but is personal property for which trover will lie. (1 High on Injunctions, sec. 673.) To authorize the issuance of the writ of injunction by a court of chancery, the injury threatened must be of such a peculiar nature that compensation in money cannot atone for it. (Carney v. Hadley, 32 Fla. 344, 37 Am. St. Rep. 101, 14 So. 4; Watson v. Hunter, 5 Johns. 169, 9 Am. Dec. 295; 1 High on Injunctions, 521.) The plaintiff has a perfect remedy in an action at law to recover the value of these logs if the defendant had no right to cut them. (Van Wyck v. Alliger, 6 Barb. 507-514, 10 Am. & Eng. Ency. of Law, 821; Minnesota Co. v. Maginnis, 32 Minn. 193, 20 N.W. 85; Aveline v. Ridenbaugh, 2 Idaho 168, 9 P. 601.) The mere allegation that irreparable injury will result to the complainant unless protection is extended to him is not sufficient. The facts must be stated, that the court may see that the apprehensions of irreparable mischief are well founded. (Mechanics' Foundry v. Ryall, 75 Cal. 601, 17 P. 703; Branch v. Yuba County, 13 Cal. 190; Wells-Fargo Co. v. Dayton, 11 Nev. 169; Gardner v. Stroever, 81 Cal. 150, 22 P. 483; Robison v. Russell, 24 Cal. 467; Schoonover v. Bright, 24 W.Va. 698, 49 Am. Rep. 257; Watson v. Ferrell, 34 W.Va. 406, 12 S.E. 724.)

S. L. Tipton and Milton Cage, for Respondents.

It is the common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extraction of ore from the mine or cutting of the timber or the removal of coal, to issue an injunction, though the title to the premises be in litigation. (Erhart v. Baoro, 113 U.S. 537, 5 S.Ct. 565; 2 Lindley on Mines, sec. 872, and cases cited; Henshaw v. Clark, 14 Cal. 461.) Not necessary to allege in the complaint the injury is irreparable. (Merced Min. Co. v. Fremont, 7 Cal. 323, 68 Am. Dec. 262; Moore v. Messani, 32 Cal. 594; Moore v. Ferrell, 7 Morr. Min. Rep. 281; Moore v. Messani, 32 Cal. 590; Hicks v. Michael, 15 Cal. 116; Leach v. Day, 27 Cal. 646; Kellogg v. King, 114 Cal. 386, 55 Am. St. Rep. 74, 46 P. 166; United States v. Guglard, 79 F. 23.) A prevention of vexatious litigation of the multiplicity of suits constitutes a favorite ground for the exercise of the jurisdiction of equity by way of injunction. (1 High on Injunctions, secs. 8, 12; Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 7 Am. St. Rep. 671, 4 So. 298.) The granting of a preliminary injunction resting in the sound discretion of the court, the appellate court will not disturb the same when there is no abuse of discretion. (Washington etc. Co. v. Coeur d'Alene Ry. & Nav. Co., 2 Idaho 439, 17 P. 142, and cases cited.) The first assignment of error is not tenable under the modern equity practice, for the reason that it presumes that an injunction will never be granted where the plaintiff has a remedy at law for injuries done. (United States v. Parrott, 7 Morr. Min. Rep. 335; Watson v. Sutherland, 5 Wall. 74; Irwin v. Lewis, 50 Miss. 368; United States v. Parrott, 7 Morr. Min. Rep. 335; 1 High on Injunctions, sec. 30; Boyce v. Grundy, 3 Pet. 210; Aveline v. Ridenbaugh, 2 Idaho 168, 9 P. 601.) An injunction will be allowed against the removal of timber already cut on the premises. (Davis v. Reed, 14 Md. 152; Fulton v. Harmon, 44 Md. 253; Shipley v. Ritter, 7 Md. 408, 61 Am. Dec. 371; Smith v. Rock, 59 Vt. 232, 9 A. 551; De La Croix v. Villere, 11 La. Ann. 39; Lanier v. Alison, 31 F. 100; United States v. Guglard, 79 F. 23; Smith v. Flick, 69 Pa. 474; King v. Campbell, 85 F. 814; Disbrow v. Westchester Hardwood Co., 17 A.D. 610, 45 N.Y.S. 378; King v. Stuart, 84 F. 546.) Section 4288 of the Revised Statutes of Idaho subdivision No. 2, reads as follows: "When it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, great or irreparable injury to the plaintiff an injunction will be granted." (Gilpin v. Sierra Nevada Con. Min. Co., 2 Idaho 696, 23 P. 547, 23 P. 1014.) The court cannot give its sanction to the contention of the defendant that, though he may be a trespasser upon another's land and though warned of another's claim or title, he may sever therefrom all of the valuable and merchantable timber, yet, if he succeeds in doing this before an injunction order is served upon him he must be permitted to carry away and dispose of the fruits of his wrongdoing. The temporary injunction heretofore awarded will be continued in force until the further order of the court, and the defendants be inhibited from removing or disposing of any of the timber cut upon said land, or remove therefrom which is still within the jurisdiction of this court. (King v. Campbell, 85 F. 814.) When the real issue is as to who owns the title to the real property from which property is severed replevin will not lie. (Martin v. Thompson, 62 Cal. 619, 45 Am. Rep. 663; Emerson v. Whitaker, 1 Idaho 361, 23 P. 285; Hallick v. Mixer, 16 Cal. 574; McAllister v. Fowler, 32 Mo.App. 91; 20 Am. & Eng. Ency. of Law, 1047.)

QUARLES, C. J. Sullivan, J., concurs. Stockslager, J. , declined to sit at the hearing, and took no part in the decision.

OPINION

QUARLES, C. J.

This is an appeal from an order granting the plaintiffs a temporary injunction restraining the defendants from removing from the Golden Group placer mining claim logs cut by the defendants from trees growing thereon, which logs are now banked upon the Middle Boise river, upon said mining claim. It is contended by the appellants that the order granting said injunction was unauthorized, for the reason that the appellants are solvent, and that a plain and adequate remedy exists in behalf of the respondents, either by action of replevin, or by action to recover damages for said timber, in the event of plaintiffs establishing title to said mining claim. It is contended by said appellants that the remedy of injunction is purely equitable, and should not be invoked or exercised in this case. Appellants cite many authorities showing the old equitable doctrine and rules of chancery relating to injunctions. The principal authority relied upon by the appellants is the case of Heaney v. Commercial Co., 10 Mont. 590, 27 P. 379. A careful reading of the decision in that case shows that the Montana court followed the ancient equitable rules relating to injunctions. The opinion nowhere refers to any statute of Montana providing the remedy of injunction. That being true, we are inclined to think that the decision cited has no application to the case at bar; for the case here is governed, to a large extent at least, by the provisions of section 4288 of the Revised Statutes of Idaho. This statute provides a legal remedy for the preservation of certain rights coming within the cases set forth in the statute. In our opinion, the authorities cited by the appellants should not control the decision in this case, for the following reasons: The distinctions between actions at law and equitable actions have been abrogated, to a large extent, in America. This is notably so in the newer states, and especially in this state. In fact, the framers of our constitution evidently intended, in framing section 1 of article 5 of our state constitution, to break down the distinction between these two classes of actions. That section, inter alia, provides: "The distinction between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited." Remedial rights which were formerly exclusively cognizable at equity are to-day largely matters of statutory law, enforceable in actions at law. Thus, it is evident that ofttimes where formerly an appeal to the chancellor was necessary, in order to protect an existing right or to prevent a threatened injury, an appeal to the original law court is now, by virtue of our codes and statutory provisions, sufficient. The remedy of injunction formerly was a matter of exclusive equity jurisdiction. The writ was...