112 P. 319 | Idaho | 1910
— This action was brought to quiet title to a triangular piece of land lying between lots 12 and 13, block 30, in the city of Lewiston, a strip eleven feet wide at the south end and terminating in a point at the north end; and for the purpose of obtaining a permanent injunction against the defendant restraining him from using what was intended as a private way extending from Ninth street over original lot 13 in said city, which private way has been subdivided into lots and designated as lots 4, 21, 22, 23 and 24, being subdivisions of a part of said lot 13, block 30; and also to restrain the defendant from other acts with reference to trespass upon said premises; and to enjoin said defendant from maintaining or using sewer and water pipes across a part of said real estate; and for what the pleader demands as a mandatory injunction commanding said defendant to remove certain buildings, fences and water and sewer pipes from the real estate owned by the appellant; and to forever enjoin him from putting or laying any sewer or water pipes upon said real estate, and for $1,000 damages.
The answer put in issue the main allegations of the complaint and averred that the defendant was the owner in fee of said triangular strip of land, and prays that plaintiff take nothing by this action and that the defendants have judgment for costs.
Upon the issues thus made the court made finding of facts, whereby it was found that the evidence was insufficient to entitle the plaintiff to any relief whatever, and judgment was entered in favor of the defendants. The decision of the court proceeded upon the theory that this was not an action to quiet title; that it was only an action for a permanent in
“There are two reasons why the court feels that it should no.t grant an injunction prohibiting the use that is shown of the said strip by Steele. The title to this strip is in dispute, and seriously so. Steele claims the strip to be his, and Brinton, as attorney in fact, claims it belongs to Thomas W. Jones. ’ ’
As stated there by the trial court, the title to said triangular strip of land is seriously in dispute, both plaintiff and defendant claiming title thereto. That issue is the leading issue in the case, and'under the pleadings it was the duty of the court to determine ownership of said triangular strip of land, and after determining the ownership, to determine whether the plaintiff was entitled to an injunction with regard to any of the acts of alleged trespass made against the defendant.
So far as the sewer and water pipes are concerned, which are laid in the ground, the plaintiff could not be required to remove them by injunction; but if a proper ease is made against defendant, he may be restrained from making further use of them. Under the laws of this state, an injunction is a writ or order requiring a person to refrain from a particular act (sec. 4287, Rev. Codes), and not a writ or order requiring a person to do a certain act. (Wilson v. Boise City, 7 Ida. 69, 60 Pac. 84.)
It will not be necessary to go any further into the details of said case. What we have said will indicate to the trial court the theory upon which the case must be tried and determined.
The judgment is reversed and the cause remanded, with direction to grant a new trial. Costs are awarded to the appellant.
