Weaver v. Mississippi & Rum River Boom Co.
| Decision Date | 14 June 1883 |
| Citation | 16 N.W. 269,30 Minn. 477 |
| Parties | James Weaver v. Mississippi & Rum River Boom Company |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Hennepin county, to recover damages for trespasses by defendant, and to enjoin it from use of, or interference with his land, and recovered judgment granting a perpetual injunction against defendant. Plaintiff appeals from an order made by Shaw, J., on defendant's motion, modifying this injunction, so as to exclude from its operation a strip of plaintiff's land, pending proceedings to condemn the same for defendant's use. A former appeal in the action is reported in 28 Minn. 534.
Order affirmed.
Rea Woolley & Kitchel, for appellant.
McNair & Gilfillan, for respondent.
This is an appeal from an order modifying an injunction, and suspending its operation in part. Such an order is in effect one dissolving an injunction pro tanto, and is appealable under Gen. St. 1878, c. 86, § 8 subd. 2.
The facts in this case, so far as here material, are briefly these: Final judgment was rendered, granting a perpetual injunction restraining defendant from entering upon certain lands of plaintiff, and from causing logs or other material to run upon or injure them, and from in any manner interfering with them. Subsequently defendant instituted proceedings under its charter, (Sp. Laws 1867, c. 134, § 13,) for the condemnation of an easement in a portion of the same lands. Under these proceedings a report was made and filed by the commissioners, awarding plaintiff $ 4,500 compensation for the lands so proposed to be taken. From this award plaintiff appealed, and a trial was had in the district court, and a verdict rendered; and thereafter by stipulation of parties, a stay of proceedings was had, for the purpose of giving either party an opportunity to make a case and move for a new trial. Under this condition of things, defendant moved for a dissolution of the injunction, upon affidavit setting forth these condemnation proceedings, and alleging that the use of the easement sought to be condemned was necessary to the proper performance of the duties imposed by its charter; that its booms could not be used without occupying or encroaching upon the lands in question; and that, if the injunction was allowed to continue in force against defendant, it would be compelled to discontinue the use of its booms, to its great damage. Against this affidavit plaintiff made no showing. The court refused to dissolve the injunction entirely, but made the order appealed from, modifying it by suspending its operation as to that part of the premises sought to be condemned, upon condition that defendant execute to plaintiff a bond, with two sureties, in double the amount of the verdict, conditioned for the payment of such judgment as should be finally rendered in the matter of said appeal, with leave to plaintiff to move to vacate such order in case defendant failed to execute such bond, or to prosecute diligently its condemnation proceedings to final judgment, or to pay such judgment as might be rendered therein in favor of plaintiff.
1. The first objection to this order is that a final judgment, not appealed from, cannot be thus set aside or modified on motion. Under the former practice, where facts have arisen since judgment was rendered, of such a nature that the judgment ought not to be executed, a party could obtain relief by an action of audita querela. Since the Code such relief may be granted on motion, provided the facts are undisputed. Wetmore v. Law, 34 Barb 515; Gilchrist v. Comfort , 26 How. Pr. 394; Cotton v. Mississippi & Rum River Boom Co., 22 Minn. 372. In this case a state of facts has arisen since the entry of the judgment, by reason of the institution of these...
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