14 Kan. 143 | Kan. | 1875
The opinion of the court was delivered by
This was an application for a temporary injunction at the commencement of an action for an injunction, under § 239 of the civil code, to restrain defendants in error pending the litigation from tearing down and destroying a mill-dam across the Verdigris river, in Wilson county. The application was made upon the petition in the cause, duly verified, to the judge of the district court at chambers. The defendants were notified, and appeared, and resisted the motion for the temporary injunction upon affidavits which are set out in the record. The judge denied the motion for an injunction, to which plaintiff excepted, and brings the cause to this court on error, as provided in § 542 of the code. The petition sets forth in substance that on the 1st of February, 1871, plaintiff in error was and ever since has been the sole' owner of the mill-dam in the petition described, and that on the 31st of January, 1872, the defendant in error, Lewis F. Davis, recovered a judgment in the district court of Wilson county against H. C. Akin, C. M. Akin, and C. M. Akin as
The defendants showing cause why said preliminary injunction should not be granted, set forth in their affidavits, in substance, that at the time of the commencement of said original action referred to, and, during the entire pendency of the same, and until after the final judgment, said plaintiff in error was not in charge of said mill-dam in said original petition described, nor had he the actual charge or control of the same, but was residing in another county, with his family, in the business of register of the land office; that at the commencement and during the entire pendency of said action, C. M. Akin, and C. G. Akin in his life-time, carried on said mill, and had the charge and management of the same; that the dam in question was adjudged a nuisance in said former action, and ordered to be abated; that said dam at the commencement of said former action was kept and maintained as a nuisance by said defendants, and is now kept by plaintiff in error so as to flood the water back in the channel of the Verdigris, and thereby to flood the land of said Davis, lying on both sides of said river, above said dam, so as to raise the water five and one-half feet in excess of the natural flow; and that said Davis had a good ford on said river on his premises, which has been ruined; that said defendant Davis, and said sheriff of Wilson county, intend only to remove so much of said mill-dam as will prevent the waters from flooding back on said Davis’ premises, and that said mill and dam are not worth over ten thousand dollars, and that said Davis is worth much more than that sum beyond exemptions and liabilities, and is-able, ready and willing to respond in damages on any judgment said plaintiff in error may obtain against him by reason of any injury to said mill-dam; and that said Davis has given the said sheriff a bond of indemnity, etc.
Some full and clear showing might well be insisted on, of a right to maintain the dam, even though it were conceded that the prior judgment was not conclusive. An injunction in limine is not a matter of strict right. It may sometimes be properly refused upon the same facts which would entitle the party of right to an injunction on final hearing. (Stoddart v. Vanlaningham, ante, p. 18.) It may be a hardship to have the dam removéd, but if a party builds a dam without obtaining by consent or legal proceedings the right to flow lands above the dam, he has only his own imprudence to blame for the result. The order denying the temporary injunction will be affirmed.