Weierhauser v. Cole

• Decision Date: 24 October 1906
• Citation: 132 Iowa 14,109 N.W. 301
• Parties: WEIERHAUSER v. COLE ET AL.
• Court: Iowa Supreme Court

132 Iowa 14

109 N.W. 301

WEIERHAUSER

v.COLE ET AL.

Supreme Court of Iowa.

Oct. 24, 1906.

Appeal from District Court, Muscatine County; D. V. Jackson, Judge.

Action to recover damages upon an injunction bond. Judgment for defendants, and plaintiff appeals. Reversed.Jayne & Hoffman, for appellant.

E. M. Warner, for appellees.

WEAVER, J.

The defendants with others as members of an unincorporated association were about to construct a rural telephone line along the highway in front of the plaintiff's premises. The plaintiff objected to such construction and threatened to remove the poles and wires. Thereupon an injunction was sued out in behalf of the promoters of the enterprise restraining the plaintiff from interfering in any manner with the construction of the line and from removing or disturbing the poles and wires erected in front of his land. The defendants herein signed the bond for said injunction. It further appears that, at the first term of court after the issuance of the writ, the court found that the telephone line could not be lawfully erected upon the highway in front of the plaintiff's land without his consent except by condemnation proceedings, and, on motion of the plaintiff herein, dissolved the injunction. Suit is now brought upon the bond and the principal question presented is whether the plaintiff may recover damages sustained on account of the injunction including attorney's fees properly expended in procuring its dissolution.

1. Upon this subject the trial court instructed the jury as follows: “(4) It will be noticed that the issuance of the injunction, the execution of the bond, and the dissolution of the injunction are undisputed, and as a result it remains for the plaintiff only to show in the first instance that he has been damaged as a result of the granting and serving of the injunction upon him, and this fact he must establish by the preponderance or greater weight of the evidence. If he fails to meet this burden which the law lays upon him, your verdict must be for the defendant. (5) In other words, plaintiff is not entitled to recover in this action unless it appears from the evidence that he was prevented by the injunction from the enjoyment of some right, the exercise of which was of some value to him, and the deprivation of which caused him loss. In this case plaintiff claims he was prevented by the injunction from interfering with certain telephone poles, and as a result could not mow his grass upon the roadside, and it is for you to say, from all the evidence bearing upon the question, whether or not he was prevented from mowing his grass by the injunction and the erection of an anchor or post during the existence of the injunction, and what, if any, loss he sustained as a result thereof. (6) If you find plaintiff was not so deprived of the enjoyment of some substantial right, your verdict must be for the defendant and you need proceed no further in the case.” These instructions are excepted to by the appellant because they are based upon the idea that to enable him to recover damages upon the bond the jury must find that he suffered some material or substantial pecuniary injury by reason of the issuance of the writ. After considerable reflection we are constrained to the view that this exception is well taken. It is true that we have held that the dissolution of an injunction against the exercise of a technical right which the defendant had no desire or intention to exercise gives rise to no cause of action upon the bond. Bank of Monroe v. Gifford, 70 Iowa, 580, 31 N. W. 881. The case of Hibbs v. Western Land Co., 81 Iowa, 285, 46 N. W. 1119, also cited by the appellee herein, decides nothing in point. It appears in that case that the party had been enjoined from trespassing on certain land, and the injunction had been dissolved. It does not appear whether the person so enjoined was the owner of the land, nor upon what grounds the writ was sued out, nor is it shown what was in issue touching the land, nor whether he was deprived of a substantial right by virtue of the injunction. For these reasons, expressly stated in...