Champion v. Sessions

1 Nev. 478 | Nev. | 1865

Opinion by

Lewis, C. J.,

full Bench concurring.

Tbe plaintiff in tbis action filed bis bill for an injunction restraining tbe defendants from opening a public road through bis premises in Washoe Yalley. To tbe complaint tbe defendants interposed a general demurrer, which, being sustained by tbe Court below, judgment for tbe costs was rendered against tbe plaintiff on tbe 29th day of August, A. D. 1865, from which judgment be takes tbis appeal. It appears by tbe record that tbe demurrer was argued, tbe preliminary injunction dissolved, and judgment ordered in favor of defendants on tbe 29th day of July, A. D. 1865, which was in vacation. Tbe restraining order granted by tbe Court might have been dissolved upon a proper showing at chambers, but to allow the argument of a demurrer to sustain or overrule tbe same, and render judgment thereon, in vacation, is clearly irregular, and a judgment so rendered would doubtless be a nullity. It may be observed, however, that the appellant does not appeal from the order or judgment rendered in vacation, but from a final judgment rendered afterwards, and during the August term of the Court. The fact of the demurrer having been argued and sustained at chambers does not make a judgment subsequently rendered upon such demurrer during a regular term of the Court a nullity. There is, therefore, no foundation for respondents’ motion to dismiss the appeal. The position of counsel in support of the demurrer seems to be equally untenable. It may be admitted that no action can be maintained upon a money demand against a county until the claim is presented to the County Commissioners and disallowed, and a failure to allege such presentation might be a fatal defect in the complaint; but this is not an action for the recovery of money, and the law which declares “ no person shall sue a county.in any case for any demand, unless he or she shall first present his or her claim or demand to the Board of County Commissioners and County Auditor for allowance,” has reference only to money demands, a fact which is perfectly clear from the language of the Act itself. The relief sought by the plaintiff is not damages for an injury done, but an injunction to restrain the defendant from the commission of an illegal act which he alleges would result in irreparable injury. If the road in question had been opened at the time this action was commenced, and the plaintiff had brought his action merely to recover damages, the position taken by the Court below in its opinion would undoubtedly be correct. That is not, however, the case. ITis object is to prevent the commission of a trespass, not to recover damages for one already committed.

The value of the land, or the actual damage he would sustain from the opening of the road through his premises, may be no compensation for the inconvenience or injury which the plaintiff might suffer from the threatened action of the defendants. The plaintiff, having suffered no damage, and the relief sought by him being only for an apprehended injury, he had no claim to present to tbe Commissioners. But should there be any doubt upon this point, there is none whatever that this is not an action against the county, which of itself completely disposes of this case.

The words “ County Commissioners of the County of "Washoe,” after the names of the defendants, are merely deserijptio personanvm, and cannot by any possible means make this an action against the county. No judgment could have been rendered against the county upon the complaint. It would not be claimed for a moment that an action against an individual described as the County Clerk or Treasurer in the complaint would be an action against the county, and yet there seems to be no reason why it should not be, any more than an action against certain persons described as County Commissioners should be.

Indeed, whether the powers of a Court of equity may be invoked to restrain the illegal opening of a public road through the premises of a person where it is not clearly shown that it would produce irreparable injury, or that the defendant is insolvent, is the only question in the case which seems to admit of argument. In cases of this character, when a complete and adequate remedy can be had at law, it is settled that a Court of equity will not interfere; but on the other hand, if the injury is likely to be irreparable, or if the defendant be insolvent, equity will always interpose its power to protect a person from a threatened injury.

We find one allegation in the complaint which we think brings the plaintiff within the pale of the equity jurisdiction of the Court and entitles him to the relief prayed for. That allegation is as follows: That the ranch of the plaintiff, through which the same is proposed to be opened, is of symmetrical proportions and easily cultivated; that the passage of said road through the same in the manner proposed by the said defendants will greatly disfigure said ranch, cmd largely increase the expense and render the same much more difficult to cultivate. Here an injury, which would be continuous and irreparable in its character, would appear to be the result of opening the road in question. It is an injury to the inheritance, impairing the just enjoyment of the property in the future? and one which would have fully justified the issuance of the injunction. (Bonaparte v. Camden and Amboy Railroad Company, 1 Baldwin’s Cr. R. 231; Mohawk and Hudson Railroad Company v. Archer, 6 Paige, R. 83; 2 Storey’s Eq. Juris., secs. 928, 929.)

The Legislature has an undoubted right to confer upon the County Commissioners the power to open roads whenever they may deem it necessary, upon a proper compensation being made to those whose property is taken for such purpose. But until such compensation is made, there is no power within the State which can legally appropriate the property of the citizen for such purposes, except in certain cases mentioned in Section 8, Article I. of the Constitution of the State.

Judgment reversed and cause remanded. The Court below will reinstate the case and take such proceedings as the equity of the case may require not inconsistent with the views expressed in this opinion.