Waters v. Dunn

• Decision Date: 30 July 1910
• Citation: 110 P. 258,18 Idaho 450
• Parties: CHARLES WATERS, Plaintiff, v. ROBERT N. DUNN, Defendant
• Court: Idaho Supreme Court

110 P. 258

18 Idaho 450

CHARLES WATERS, Plaintiff, v. ROBERT N. DUNN, Defendant

Supreme Court of Idaho

July 30, 1910

PROHIBITION-WRIT OF MANDATE-APPLICATION FOR-CAUSE OF ACTION-DEMURRER-INJUNCTION-SUSPENSION PENDING APPEAL-JURISDICTION OR POWER OF COURT-APPEALABLE ORDER.

(Syllabus by the court.)

1. The court may in its sound discretion suspend the operation of an injunction during an appeal.

2. Held, that on an application to enforce an injunction, a court has the authority to deny such application and make an order suspending the operation of the injunction pending an appeal.

3. Whether the order involved in this case is an appealable order, quaere.

4. Held, that the demurrer to the complaint must be sustained on the ground that the complaint does not state a cause of action warranting the issuance of the writs prayed for.

Original proceedings in this court for writ of prohibition and writ of mandate. Demurrer to the complaint sustained.

Demurrer to the petition sustained, and writs denied. Costs awarded to the defendants.

Kerns &amp Ryan, for Plaintiff, file no brief.

Gray &amp Knight, and Chas. L. Heitman, for Defendant.

The order made by the court below was a discretionary order, and is not subject to be revised upon an application either for prohibition or mandamus. (Rust v. Stewart, 7 Idaho 558, 64 P. 222; Connolly v. Woods, 13 Idaho 591, 92 P. 573; State ex rel. Burrows v. Superior Court, 43 Wash. 225, 86 P. 632.)

The trial court, if it had jurisdiction to issue the injunction, certainly had jurisdiction to dissolve it or to stay it during appeal. (Connolly v. Woods, supra.)

The trial court has power to suspend the operation of the injunction pending appeal, and until the rights of the parties are determined in the supreme court. (Hovey v. McDonald, 109 U.S. 150, 3 S.Ct. 136, 27 L.Ed. 888; Genet v. Canal Co., 113 N.Y. 472, 21 N.E. 390; Carson v. Jansen, 65 Neb. 423, 91 N.W. 398; National Docks etc. Co. v. Penn. R. Co., 54 N.J. Eq. 10, 33 A. 219.)

The courts also recognize the right to stay an injunction. (Whitehouse v. Ry. Co., 9 Wash. 558, 38 P. 152; Carson v. Jansen, 65 Neb. 423, 91 N.W. 398; Lund v. Idaho & W. N. R. Co., 48 Wash. 453, 93 P. 1071.)

Mandamus does not lie to control the discretion of a court or judicial officer; and whatever exceptions there may be to this general rule, it is clear that a court cannot be made by mandamus to exercise its discretion in a particular manner. (People ex rel. Gesford v. Superior Court, 114 Cal. 466, 46 P. 383; Hanson v. Police Jury, 116 La. 1080, 41 So. 322; Ex parte Schwab, 98 U.S. 240, 25 L.Ed. 105; Aycock v. Clark, Judge, 94 Tex. 375, 60 S.W. 665; Schwan v. Allen, Judge, 51 La. Ann. 1842, 26 So. 434.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an original application to this court for a writ of prohibition prohibiting the defendant judge from arresting the operation of an injunction and for a writ of mandate commanding him to enforce said writ of injunction or to enter an order dissolving the same.

To the petition or complaint the defendant interposed a demurrer on the ground, (1) that the petition does not state facts sufficient to warrant the issuance of either of the writs prayed for; (2) that the court had jurisdiction of the subject matter and the parties; that the order made was an exercise of judicial discretion and therefore the trial court had jurisdiction to make said order; and (3) that several causes of action are improperly united, to wit, one for a writ of prohibition and one for a writ of mandate. The matter was presented and heard on the complaint and demurrer. This application arose from the following facts:

An action was brought by the plaintiff in this proceeding, Charles Waters as plaintiff, against the Washington Water Power Co., defendant, in the district court of Kootenai county. In that action, Honorable Robert N. Dunn, judge of the eighth judicial district, on December 30, 1909, entered judgment in favor of the plaintiff in the last-mentioned case, enjoining and restraining said defendant from flooding and overflowing certain lands of the plaintiff, which flooding was by means of obstructions constructed and maintained by said defendant in the Spokane river at Spokane Falls in Kootenai county. It is alleged in the complaint or petition for said writs of prohibition and mandate that on the 4th of June, 1910, the said Washington Water Power Co. commenced, and at all times since said date has continued to violate said injunction by causing the waters to be held back upon the lands of plaintiff; that on June 8, 1910, the plaintiff petitioned the defendant in this proceeding, as such judge, to enforce obedience to said injunction, and counsel for the water power company at the same time moved for a modification of said order and judgment of December 30, 1909, which motion was denied, and by an order dated June 18, 1910, the judge refused to enforce obedience to said injunction and denied said application of plaintiff Waters, and did then and there make an order to the effect that said injunction should not take effect until after the determination by the supreme court of this state of an appeal which was then pending in said court, wherein said Washington Water Power Co. was plaintiff and the said Charles Waters and others were defendants.

It is contended by counsel for petitioner that said order of June 18, 1910, refusing to enforce obedience to said injunction, was and is in excess of the jurisdiction of said defendant judge, in that it deprives the plaintiff of his lawful right of protection for his property, and that plaintiff has no appeal from said order. It is also contended that it is necessary for the protection of the rights of said plaintiff that said defendant, as such judge, should either enforce said injunction or enter an order dissolving the same so as to permit the plaintiff to perfect an appeal from the order dissolving said injunction.

Said injunctive order was made on December 30th, 1909, and after a recitation of the facts, the order is as follows:

"Now, therefore, it is hereby ordered that the defendant, the Washington Water Power Company, be enjoined and restrained during the pendency of this action from maintaining that certain mechanical contrivance known as a beartrap on its dam at Post Falls, Idaho; that defendant cease and desist from flooding and overflowing any portion of plaintiff's said land, said injunction and restraining order to take effect on the 1st day of February, 1910, unless said defendant shall in the meantime commence proceedings in the proper court to condemn the right and power to flood and overflow the lands of the plaintiff described in the pleadings herein, and prosecute said proceedings diligently in accordance with the provisions of the statute in such case made and provided, to wit: Sections 5210 to 5229, both inclusive, and cause three disinterested persons to be appointed as commissioners to assess and determine the damages that said plaintiff may sustain by reason of the condemnation and appropriation of the property described in the pleadings herein, and it is further ordered that upon the payment by the defendant prior to said 1st day of February, 1910, of the amount of damages, so assessed and determined by said commissioners, to the plaintiff, or if the plaintiff refuse to accept the same, then after such amount shall be deposited with the clerk of the court to abide the result of said condemnation action, said defendant may enter upon and take possession of and use said property of plaintiff until the final conclusion of the litigation concerning the same."

It appears that after said order was made, action was commenced by said water power company for the condemnation of plaintiff's land; that after certain proceedings were taken in that matter, it was held by the trial court that said water power company had not the right or authority to exercise the right of eminent domain in the condemnation of said land, and judgment was entered against said water power company, from which judgment an appeal was taken to this court. Thereafter the plaintiff, Waters, made the application above mentioned to said court for the enforcement of said injunctive order, and the court denied said order and refused to enforce said injunction during the pendency of said appeal and made the following order:

"Orders that the said application of the plaintiff for the enforcement of the order heretofore, to wit, on the 30th day of December, 1909, entered herein, the operation of which said order had been subsequently suspended, be and the same is hereby denied pending the final determination of the right of the defendant company to condemn for overflow purposes the lands of the plaintiff, which said condemnation suit is now pending in the supreme court of the...