Kelley v. Briggs, 58 Iowa 332

Kelley v. Briggs

58 Iowa 332 | Iowa | 1882

Rothrook, J.

1. INJUCTION : dissolution of: discretion of court. It is true there is a public highway along the north boundary of plaintiff’s land. The land is bounded on the south by a line near the edge of the river, b ’ an(^ the face of the quarry is on or near the river, ippg ppjff jg some twenty-five feet high, and if the plaintiff be denied the right to use the wagon way in dispute, he would be required to raise the stone from the quarry to the bank above it. It appears that if this should be required the quarry would be practically worthless. We are required to determine whether, under the facts in this case, the court abused its discretion in overruling the motion to dissolve, and continuing the injunction to the heariug. We are of the opinion it did not. In so holding we do not propose to determine the question whether or not, under the facts, the plaintiff is entitled to a right of way over the defendant’s land from necessity, nor the question of the plaintiff’s right to the use of the wagon way because he constructed it, nor his alleged right growing out of a parol license from the defendant to Thomas. These questions have all been elaborately argued by counsel’ for appellant, and a large number of authorities cited. The question with us, is, was there an abuse of discretion in overruling the motion. There is no showing that the continuance of the injunction to the hearing will result in any substantial injury to the defendant, and it appears that the closing up of the wagon way will meterially injure the plaintiff and. embarrass him in the prosecution of his business. Many adjudged cases can be found where it is held that the dissolution of an injunction is an abuse of discretion, but the cases are very rare where it is adjudged to be error to continue to the hearing. As it is said in Dent v. Summerlin, 12 Ga., 5, quoted with approval in Stewart v. Johnson & Co., 44 Iowa, 435: “The question is not now, whether this court would have dissolved the injunction at the hearing of the motion, but the question now is, *335whether this court shall control the discretion of the court below in refusing to dissolve it.”

Even when the equity of the bill is fully denied, it does not follow as a matter of course that the injunction will be dissolved. Its dissolution or continuance rests very much in the sound discretion of the court, to be governed by the nature of the case. Shricker v. Field, 9 Iowa, 366.

2.— : petition : affidavit. II. A question is made as to whether the petition is supported by affidavit as required by sec. 3388 of the Code. The petition is sworn to, and the affidavit is to the effeet that the contents thereof are true, as the affiant believes. This, we think, is sufficient. The petition sets forth the facts upon which the relief is demanded, and an affidavit of their truth, it seems to us, is all that can be required, to call upon the court or judge to act in the premises.

Aeeirmed.