Wilson v. Eagleson

• Decision Date: 02 February 1903
• Parties: WILSON v. EAGLESON
• Court: Idaho Supreme Court

71 P. 613

9 Idaho 17

WILSON v. EAGLESON

Supreme Court of Idaho

February 2, 1903

INJUNCTION-MAY ISSUE ON ORDER OF DISTRICT JUDGE-UNDERTAKING REQUIRED-WHEN SUFFICIENT.-Where the complaint alleges great and irreparable injury to growing crops, and that the damage cannot be justly estimated under the provisions of section 4288 of the Revised Statutes, a district judge is empowered to order an injunction to restrain the acts complained of. An undertaking regular in form is not invalid for the reason that the sureties did not justify that they were householders or freeholders of the county and state. The justification is no part of the undertaking.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed, with costs.

Martin & MacElroy, for Appellants.

The court should not order injunction to issue without an adequate undertaking in form required by law. The original bond is a part of the record. It is for only $ 250, and did not have attached the affidavit required by section 3749 of the Code of Civil Procedure of 1901, stating that the sureties were either householders or freeholders. This matter was called to the attention of the court in the motion to dissolve. The court ordered the modified injunction without requiring any undertaking whatever. The undisputed testimony showed a probable loss of more than $ 2,500. We respectfully submit that under the provisions of section 3749, above mentioned, an undertaking without this affidavit is a nullity. Also, that it was the duty of the court, upon making the order appealed from in this case, to require a bond in sufficient amount to protect the defendants. This case stands as if there were no undertaking whatever. It is necessary that bond be given. (McCracken v. Harris, 54 Cal 81; Schacht v. Odell, 52 Cal. 448.) We are unable to find any authority holding that the destruction of annual crops is sufficient ground for injunction without insolvency. (Fulton Irr. Ditch Co. v. Twombly, 6 Colo. App. 554 42 P. 254.) The loss of crops could have been compensated in damages at the end of the season. Equitable relief can only be invoked when there is no adequate legal remedy. Where realty is damaged by the destruction of trees or permanent improvements, the measure of damages is the difference between the value of the real estate with and without the improvements or trees destroyed; but in case of destruction of crops we find that they are valued wholly separate and independent from the real estate. (Shotwell v. Dodge, 8 Wash. 337, 36 P. 254; Gause v. Perkins, 3 Jones Eq. (N. C.) 177, 69 Am. Dec. 728.) Neither defendants in the case nor the court can say what land, if any, of the plaintiffs is being irreparably injured. "It is a general rule of equity pleadings that in a suit for an injunction the plaintiff's bill must allege that he has some interest or title which it is the duty of the court to protect; and so it has been held that, in a suit to restrain a nuisance, the plaintiff must aver that he was the owner of the premises affected by the nuisance at the time when the case complained of was commenced." (14 Ency. of Pl. & Pr. 1143; Stone v. Bumpus, 40 Cal. 428; Denner v. Chicago etc. Ry. Co., 57 Wis. 218, 15 N.W. 158.) "Mandatory preliminary injunctions are seldom granted and only in a particular class of cases; and obviously, alleged nuisances ought not, in ordinary cases, to be abated by preliminary injunctions." (Stewart v. Superior Court, 100 Cal. 543, 35 P. 156, 563; Gardner v. Stroever, 81 Cal. 150, 22 P. 483; Delger v. Johnson, 44 Cal. 182; Hagen v. Beth, 118 Cal. 330, 50 P. 425.)

Richards & Haga, for Respondents.

The order complained of was not granted until the court had carefully considered and balanced the inconveniences likely to be incurred by the respective parties through the granting or withholding of the injunction. The issuance, dissolution or continuance of a preliminary injunction is a matter within the sound discretion of the court that issues the injunction, and it is the settled rule in such cases that the appellate court will not interfere with the exercise of that discretion, except in a case of palpable error or abuse of discretion. (Washington etc. Co. v. Coeur d'Alene etc. Co., 2 Idaho 439, 17 P. 142; White v. Nunan, 60 Cal. 406; Parrott v. Floyd, 54 Cal. 534; 10 Ency. of Pl. & Pr. 983.) This is specially true where the court examines the premises in person, as the court on appeal cannot tell what he saw. The court that grants a preliminary injunction may, in its sound discretion, modify it at any time before the final hearing. (Hobbs v. Canal Co., 66 Cal. 161, 4 P. 1147; 10 Ency. of Pl. & Pr. 1092.) Counsel insist that the "court should not order an injunction to issue without an adequate undertaking in form prescribed by law." It is then insisted that the words "house" or "free" having been omitted from the affidavit made by the sureties and attached to the undertaking, render the undertaking a nullity. Counsel seem to overlook the provisions of section 3287, under which this undertaking was given. Appellants have never excepted to the sufficiency of the undertaking filed herein. It is true appellants in their motion to quash, filed July 1, 1902, among other things, set forth "that plaintiffs have not filed a bond herein in compliance with the law, and the sureties thereon have failed to justify or qualify according to law." This is in no sense an exception to the sufficiency of the sureties. (Schact v. Odell, 52 Cal. 448.) An injunction should not be absolutely dissolved for a failure to require the statutory bond. The proper order would be that a bond be executed within a reasonable time, or the injunction be discharged in default thereof. (Jones v. Ewing, 56 Ala. 360; New v. Wright, 44 Miss. 202; Palmer v. Ellegood, 4 Del. Ch. 53.) A defect in an injunction bond does not operate to dismiss the injunction suit. (Massey v. Mann, 17 Iowa 137; Alexander v. Ghiselin, 5 Gill, 138; Manley v. Leggett, 17 N.Y.S. 68, 62 Hun, 562.) Counsel contend that it does not appear that the plaintiffs have not an adequate remedy at law. Where equity can give relief, the complainant will not be compelled to speculate upon the chances of his obtaining relief at law. This doctrine has been applied in numberless instances. (16 Am. & Eng. Ency. of Law, 355; Staples v. Rossi, 7 Idaho 618, 65 P. 67.) In actions for diversion of water, where there is a clear violation of an established right and a threatened continuance of such violation, it is not necessary to show actual damages or a present use of the water in order to authorize a court to issue an injunction or make it perpetual. (Mott v. Ewing, 90 Cal. 231, 27 P. 194; Conkling v. Pacific Imp. Co., 87 Cal. 296, 25 P. 399; Lux v. Haggin, 69 Cal. 278, 10 P. 674; Moore v. C. L. W. W., 68 Cal. 151, 8 P. 816.)

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are fully stated in the opinion.

STOCKSLAGER, J.

This action is here on appeal from an order granting a preliminary injunction made by the district judge of Ada county on the twenty-third day of July, 1902. The complaint alleges that plaintiffs, with defendants, are the owners of what is known as the "Peninger lateral"--a ditch diverting water from what is known as the "New York canal"; that the same is a community ditch, etc. The second allegation sets out the course, lands through which it passes, etc. The third is that each of the plaintiffs are owners of tracts of land in Ada county under and tributary to said lateral. Fourth. That their lands are desert in character, and require the application of water to reclaim, produce crops, etc. Fifth. That said lateral is the only convenient means by which water can be carried from said lateral to their lands. Sixth. That plaintiffs have respectively placed under cultivation a large part of their lands, and that the same are now in a high state of cultivation, and are in need of water, etc. Seventh. That defendants have wrongfully, and without consent of plaintiffs, or any of them, at a point above the lands of plaintiffs, and in the vicinity of the point where the lateral diverts water from said canal, placed in said lateral check-gates which prevent the water belonging to plaintiffs from flowing through said lateral to said tracts of land of plaintiffs. Eighth. That defendants have been frequently urged and requested to remove such obstruction, but declined so to do, and threatened to continue and will continue to maintain said obstruction of said lateral, unless required to remove the same by order of the court. Ninth. That if defendants maintain said check-gate in said lateral, the crops of plaintiff will be wholly destroyed, the labor and expense incurred in putting said lands under cultivation totally lost, and plaintiffs irreparably injured, etc. Tenth. That a large part of said crops are of recent planting, and require frequent irrigation to preserve the same until well started; that said crops have been deprived of the necessary water, for the reasons above stated, for some time; that should plaintiffs wait to give notice of this application for the injunction prayed for such crops would be largely, if not wholly, destroyed, by reason of lack of moisture, etc. Then follows prayer for temporary injunction.

This complaint was filed June 27, 1902, and on the same day the judge made the following order and injunction:

"Order.

"The plaintiffs in the above-entitled cause having commenced an action in the above-entitled court against the above-named defendants, and having prayed for an injunction against the said defendants, requiring them to refrain from certain acts in the complaint filed herein, and hereinafter more particularly mentioned, on reading the said...