261 P. 908 | Wyo. | 1927
This suit was instituted in tbe District Court of Natrona County by tbe defendant in error against tbe plaintiffs in error, by a petition asking for tbe issuance of an injunction restraining tbe plaintiffs in error from interfering in any manner with tbe possession of certain real property, consisting of tbe America and tbe Iris Theatres, situated in Casper, Wyoming. For convenience’ sake, Rex Investment Company will be called “plaintiff,” and Casper Wyoming Theatres Company and George R. Stewart, “defendants.”
A temporary order was signed by tbe district judge restraining tbe defendants, their agents, employes, and representatives, from in any manner interfering with tbe possession, ownership, or control of tbe plaintiff as respects tbe real estate in question. Thereafter an answer was filed by tbe defendants and a motion was made by tbe
The plaintiff contended it was tbe owner and in peaceable possession of tbe theatres, and that tbe defendants, through their agents, servants, and employes, interfered with its possession by attempting to conduct moving pictures in each of tbe theatres; and, therefore, sought and obtained tbe order restraining tbe defendants from in any manner interfering or molesting tbe plaintiff in its possession. On behalf of tbe defendants it is maintained that they were in peaceable possession of tbe two theatres under a lease, and that tbe plaintiff, on tbe morning of August 25,1925, by one of its officers (A. H. Stewart) and certain attorneys and other persons employed by it, appeared at each of tbe two theatres and, by force, sought to obtain possession of tbe property, it being tbe contention of tbe defendants that they at no time voluntarily surrendered possession; that they insisted on tbeir right to possession and endeavored to keep in possession of tbe two theatres, until tbe injunctional order, referred to, was served on them late in tbe afternoon of August 25. At tbe bearing affidavits were presented on behalf of both plaintiff and defendants, and in addition thereto oral testimony was received. It fairly appears from tbe affidavits and tbe testimony received that, on tbe morning of August 25, 1925, and for some years before that time, tbe defendants were conducting a moving picture business at each of the theatres in question; that on this particular morn
A careful reading of tbe oral testimony of Mr. A. H. Stewart, president of tbe plaintiff company, discloses that, upon tbe failure of tbe defendant to pay tbe rent on tbe 23d of August, 1925, when it was due, be considered it bis duty to take charge of tbe properties. He states that be told tbe manager of tbe defendant company that be was in possession. When asked if tbe defendant consented to bis going in and taking possession, Mr. Stewart stated, “I didn’t ask him for bis consent.” And when asked tbe further question, “Did be ever consent to your going in and taking possession?” be answered, “No.” When asked further, “Did be voice any protest to you to your going in and taking possession” be answered, “He was running around trying to give me a lot of misery. I paid no more
The record establishes very clearly the unsettled and uncertain character of plaintiff’s possession of the premises before the service of the restraining order.
Upon the facts presented in this ease, we do not hold— and do not consider it necessary to decide the question— as to just when an injunction should be issued to protect one in the possession of property. There does not seem to be much controversy over the law in this case between counsel for the respective parties. The attorneys for the defendants state the proposition of law that “a person out of possession cannot gain possession by injunction;” and the attorneys for the plaintiff state, in their brief: “No question of right of possession was presented to the trial court for determination, and we do not believe it is the province of a court of equity to determine such a question.” And again: “We proceeded upon the theory that
We feel that, under these circumstances, the case can readily be decided upon the facts; and there is no question in our minds but what the defendants were in peaceful possession on the morning of August 25, 1925, at which time the plaintiff sought to take over the control of both theatres, and in doing so the employes of the plaintiff had several scuffles or encounters with the employes of the defendants. The plaintiff, if it gained possession at all before the service of the order of injunction, gained what is termed by some writers a “scrambling possession.” A court of equity will not protect possession gained in this manner. It tends to encourage breaches of the peace and physical violence.
We are not unmindful of the conflict among the authorities in regard to the right of a landlord to dispossess a tenant without legal process; but under the facts in this case we do not deem it necessary to go into that phase of the question.
In view of the confusing situation as it existed on the 25th of August, 1925, between the parties to this action, as respects the possession of the two theatres in question, the granting of the injunction, under the circumstances presented, in practical effect took the possession from the defendants and gave it to the plaintiff. An injunction cannot be used to take property out of the possession of one and give the possession to another.
In the language of Black v. Jackson, 177 U. S. at p. 361, 20 S. Ct. 652, 44 L. Ed. 801, it is well stated that:
“This remedy by injunction, both mandatory and prohibitive in character, may and does sometimes become a*365 very far-reaching and oppressive, as well as á speedy and effective, one, and should only be granted by courts of equity in cases where the applicants therefor bring themselves clearly within the well-defined and established rules authorizing the issuance of same; hence, such courts rarely deem it necessary or advisable to interfere in this manner, to aid a person endeavoring to recover the possession of real property. ’ ’
¥e are, therefore, of the opinion that the injunction should be dissolved. The order making the temporary injunction permanent will be reversed, and the case remanded with instructions to dissolve the temporary injunction and dismiss the action at plaintiff’s cost.
Kimball, J., and Riner, District Judge, concur.