118 P.2d 130 | Utah | 1941
This is an appeal upon the judgment roll. This suit was initiated August, 1928, but never came to trial until June 11, 1940. It is a water suit in which both parties seek injunctive relief and damages. The issues upon this appeal arise over the findings of fact and conclusions of law of *72 the lower court rendered upon the counterclaim of defendants and appellants O.C. Snow and John Snow. They assign two errors, which we quote:
"The Court erred in its conclusions of law as follows:
"1. That because of the fact that the defendants had permitted said action to remain in Court undetermined and without attempting to secure a determination thereof until on or about the year 1940, they are not entitled to judgment for damages on account of loss of the use of said waters on account of the acts of the plaintiff or the issuance of said restraining order or at all.
"2. The Court erred in its refusal and failure to award damages against the plaintiff to the defendants on account of loss of enjoyment and use of the waters awarded defendants."
Assignment #1 arises out of these facts: When plaintiff and respondent filed its complaint, it, upon ex parte application obtained a restraining order prohibiting defendants from interfering with the waters in question, and furnished a bond pursuant to section 104-17-4, R.S.U. 1933. This was in August, 1928. In May, 1940, upon motion of defendants, the court dissolved the restraining order. Thereafter defendants amended their counterclaim to include damages as a result of the restraint of the order over the period of 1928 to 1940. Upon the counterclaim, so amended, the lower court made the following findings of fact and conclusions of law, pertinent to the issues on this appeal:
"* * * There was decree to these defendants, as follows:
"To be diverted from the Mitchell Springs, tributary to the South Fork of the Sevier River, Piute County, O.C. Snow and John Snow, Priority 1881, period of use May 1 to Oct. 15, 1.5 C.F.S. to be diverted from Mitchell Ditch, and conveyed to Sevier River, allowed to flow down the said river to the head gates of the Monroe South Bend Canal Co."
A conclusion of law:
"* * * Because of the fact that the defendants had permitted said action to remain in court undetermined and without attempting to secure a determination thereof until on or about the year 1940, they are not entitled to judgment for damages on account of loss of the use of said waters on account of the acts of the plaintiff or the issuance of said restraining order or at all."
The decree entered by the Court conformed to the conclusion of law last above quoted, and denied damages. *74
It is respondent's contention, among others, that damages resulting from the issuance of the restraining order are not to be recovered in and as a part of the injunction suit; that the sole remedy for such a recovery is a suit upon the bond or undertaking. If this contention be correct, it disposes of this case, as under such circumstances, the denial of such damages would be proper, even though the reason for the denial be erroneous.
We are of the opinion that respondent's theory of the law applicable in this state is correct. This suit is not upon the bond, nor is it one in malicious prosecution. That being the case appellants are not entitled here to 1, 2 damages for losses sustained as the result of the improvident issuance of an injunction or restraining order. We quote from some of the authorities upon the subject.
"In the absence of elements of an action for malicious prosecution, it is established by the great weight of authority that no action will lie by defendant in an injunction suit, independently of bond or undertaking, for damages for the wrongful suing out of the injunction."
"In the absence, therefore, of legislative authority to the contrary, a court of equity will not, upon dissolving an injunction, enforce payment of damages in the original cause, but will remit the parties aggrieved to their action upon the bond." 2 High on Injunctions, 4th Ed., 1606.
"* * * The majority of decisions hold that in the absence of express statutory authority or of some provision in the bond itself authorizing it, the court granting the injunction has no power on dissolution thereof to assess the damages resulting from the wrongful issuance of the injunction." 32 C.J. 439.
"In Robinson v. Kellum,
"The law appears to be pretty well settled, also, that in actions of this character, damages cannot be awarded in the original cause, in the absence of a statute authorizing the same on the dissolution of the injunction, but the party aggrieved must resort to an independent action." Sorter v. Strassheim,
See, also, 28 Am. Jur. 510 and 529; Sutherland on Damages, 4th Ed. vol. 2, page 1718; Jacobs v. Greening,
In anticipation of this possible solution of the case, appellants argue that we must not overlook the fact that their losses are not charged solely to the issuance of the restraining order; but that respondent otherwise interfered with their use of the waters. But the lower court made no segregation of such damage. So far as the period from 1928 to 1940 is concerned, for aught that appears in the findings of fact the damages suffered were all attributable to the issuance of the injunction or restraining order. If an injunction is improvidently issued, the one who has suffered damages as a result does not have two causes of action, one based upon the bond and the other based upon the acts which were carried out under the protection of the restraining order and bond. Those two are not different causes of action, but merely different ways of stating the same cause of action, a cause of action upon the bond.
As to the period prior to the filing of the complaint in 1928, the lower court made no finding of fact to support damages; and no complaint is made before this court that the findings of fact are inadequate. We have no evidence before us. *76
The judgment and decree of the lower court is affirmed. Costs to respondent.
MOFFAT, C.J., and WOLFE, LARSON, and McDONOUGH, JJ., concur.