27 Cal. 643 | Cal. | 1865
We deem it unnecessary to determine whether the road laws of this State are unconstitutional so far as they authorize the laying out and establishing of private roads. It is not necessary to determine that question in order to finally dispose of this action. All that the plantiff claims on that score may be conceded without its following therefrom that he is entitled to the relief which he seeks. Admitting that the Act of the Legislature empowering the Board of Supervisors to lay out and open private roads is unconstitutional, and that therefore their acts in laying out and opening a private road for the use of the defendant across the land of the plaintiff are null and void, it only follows that the grounds upon which the defendant seeks to justify his acts have failed him, and he stands convicted of the trespass alleged in the complaint.
Leaving this constitutional question out of view it only remains to determine whether on the case made by the complaint the plaintiff is entitled to an injunction.
The complaint merely alleges that the defendant on a day stated, and at divers other times between that day and the commencement of the action broke and entered the close of the plaintiff and did by himself and servants tear down and destroy the fences of the plaintiff to his damage in the sum of fifty dollars, for which he prays judgment. Such is the nature and extent of the trespass alleged in the complaint.
For the purpose of obtaining an inj unction the complaint thereafter proceeds and shows that the trespass in question was committed by the defendant under a pretended claim of a right of way over the plaintiff’s land by virtue of a pretended order of the Board of Supervisors, opening and establishing a private road for his use, and that the defendant threatens to tear down the plaintiff’s fences at each end of the road as often as he erects the same—wherefore he asks an injunction.
The bare statement of these facts is a complete answer to the prayer for an injunction. No reasons are given or attempted to be given why the plaintiff has not an adequate and
Anciently Courts of equity would not interfere at all by injunction in cases of trespass, but left the party to his legal remedy. In modern times, however, this doctrine has been very much relaxed, and although the general rule remains, yet there are exceptional cases where equity does and will interpose, but a strong case must be made. It will interpose for the purpose of quieting a possession or preventing a multiplicity of actions, or where the value of the inheritance is put in jeopardy, or where irreparable mischief is threatened in relation to mines, quarries or woodland, whether the same result from the nature of the injury itself or from the insolvency of the party committing it. (West v. Walker, 2 Green’s Ch. R. 279 ; Van Winkle v. Curtiss, lb. 422; Kerlin v. West, 3 lb. 449.) Obviously the case at bar does not come within either of the foregoing exceptions. It does no more than present a case of naked trespass for which an action at law, for
But it is insisted on the part of the respondent that this is not an ordinary action of trespass, and it is argued that it is like the case of McCann v. Sierra County, 7 Cal. 121, and rests upon the same principle. The facts of that case were that the Board of Supervisors had, by resolution, extended a street or public thoroughfare through the land of the plaintiff without providing any compensation for the private injury consequent thereon, and were in the act of opening the street through the land of the plaintiff" at the time the complaint was filed. The complaint asked for five hundred dollars damages and a perpetual injunction. The case went off upon demurrer to the complaint, upon the ground that the plaintiff’s claim for damages had never been presented to the Board of Supervisors for allowance, and rejected in whole or in part, as required by law. In the course of his opinion, Mr. Chief Justice Murray remarks, that the act of the Supervisors in appropriating the land of the plaintiff to public use before compensating him for the value thereof, was illegal, and he might resort to a Court of equity to restrain them. That doctrine is undoubtedly correct. It proceeds upon the theory that the Board of Supervisors have the power to condemn private property for public use, upon making compensation therefor. Such condemnation, if legally accomplished, acts directly upon the title and takes it practically from the individual and vests it in the public; if not done legally and in accordance with the Constitution, it nevertheless, by reason of the existence of the acknowledged power, casts a cloud upon the title which is the ground of equitable interference in such cases.
In our judgment there is no analogy between the two cases, and however applicable the dictum, upon which respondents rely with so much apparent confidence, may have been to the facts of that case, it has no application here. This is not an action to restrain the Board of Supervisors from taking the land of the plaintiff and appropriating it to public use without
We may add that, so far as the plaintiff’s right to equitable relief is based upon the alleged invalidity of the acts of the Board of Supervisors in laying out the road in question, the complaint is manifestly felo de se. If, as contended, those acts are absolutely null and void on their face upon the ground that the Act under which they were had is unconstitutional, it follows that they cannot hurt the plaintiff, for they have not even the appearance of legality, and, therefore, cannot affect or cloud in any manner his title. In such a case he has no need for an injunction, and, therefore, is not entitled to one.
Judgment reversed and cause remanded.