89 F. 424 | U.S. Circuit Court for the District of Nevada | 1898
(orally). Erom tlie foregoing facts it will be seen that the defendant Pitt admits a technical violation of the letter of the injunction, but denies any violation of its spirit. He seeks to justify his acts upon the ground that he and the other defendants in the suit have, since the injunction, procured an independent title to a water right not then litigated or considered, which is prior in date to any right of complainant to the waters of the Humboldt river. His contention is that not only the question of Clark’s title to the water must be held in abeyance, but that the defendant, having acted in good faith, without any intent to violate the injunction, should be discharged; that complainant’s remedy, if any he has, is by commencing a new suit against the defendants, and procuring another restraining order or temporary injunction, pending the trial of such suit. The following authorities are cited in support of this contention: Mahoney v. Van Winkle, 33 Cal. 448, 458; Larrabee v. Selby, 52 Cal. 506; Ex parte Hollis, 59 Cal. 406; Ex parte Casey, 71 Cal. 269, 12 Pac. 118. These authorities, while having some analogy to some of the principles involved herein, are wholly unlike in their facts, as will fully appear by a brief reference thereto. In Mahoney v. Van Winkle and Larrabee v. Selby, which were actions of ejectment, it was held that a person against whom a judgment is recovered in ejectment, and who is removed from the land by a writ of restitution, is not guilty of contempt for re-entering on the land if an event has occurred after the judgment, and before the re-entry, which confers upon him the right of possession. In Ex parte Hollis the petitioner had been adjudged guilty of contempt for refusing to turn over certain money- and goods claimed by him adversely to a corporation.
If the question involved a determination of the title to the land, property, and water rights which the defendant had an option to purchase, then other questions would be presented as to whether or not the defendant, by a mere option to purchase, could compel complainant to try the title, etc. There are doubtless many cases where an injunction has been issued restraining persons from any interference with specific property where it is held that the injunction should not be so construed as to prevent them from exercising subsequently acquired rights (herein when a wholly different situation exists from ihat heard and determined at the time the injunction was issued. But every case depends upon its own peculiar conditions, and it does not necessarily follow that in all cases a mere change in the conditions or the acquisition of new rights will prevent a party from being adjudged guilty of contempt. In Woodruff v. Mining Co., 27 Fed. 795, Ihe defendant was proceeded against for contempt in violating an injunction which enjoined it from discharging into the Yuba river any of the tailiugs, gravel, or débris from its mine. The matter was referred to a master, who found that defendant; “had been continuously engaged in practical drift mining in its mine,” and had discharged tailings into a tributary of the Yuba river, and by such acts had violated the decree, and was in contempt.. Several exceptions were taken to this report, — among others, that the testimony was not strong; that it was not shown that the violation of the'injunction was willful; and it was contended that there was no violation of the injunction, and no intent to violate it. because drift mining and its incidents were not within the terms of the injunction against the defendant when engaged in hydraulic mining. The court sustained the master's report, and imposed a fine of $1,500 as a punishment for the contempt. In the same case (45 Fed. 129, 131), after the defendant had erected impounding works, the court held that defendant could not be held guilty of contempt “upon the simple showing of discol
If the issues presented by the affidavits in this case depended solely upon whether Clark’s title to the water was prior or subsequent to that of complainant, a different question would arise. But conceding for the purpose of this opinion all that is claimed by the defendant in that respect, and of his right to change the point of diversion of the water providing other parties were not injured thereby, it does not necessarily follow that the contention of defendant’s counsel should be sustained. The question for decision is one of fact,— whether the defendant, by his acts, has deprived the complainant of the use of any of the waters of the Humboldt river to which he is entitled by the terms of the injunction. If the testimony was of such a character as to convince the court that the act of defendant had increased the quantity of water at the Pitt dam to as great, or greater, extent than the quantity of water turned out by the defendant into the Pitt ditch, the court would have no hesitation in discharging the defendant, upon the ground that he had not violated the spirit of the injunction; and .this should and would be done without regard to the question whether the title of Clark was prior or subsequent to the title acquired by complainant. Complainant would not be injured or damaged, or the spirit of the injunction violated, unless the act committed by the defendant resulted in reducing the quantity of water which but for his acts would have reached the Marker ditch, and flowed down to complainant’s land.
There was no attempt to show by the testimony of engineers or other persons how much of the water from Clark’s ranch, at the present low tide of the water in the river, which is constantly decreasing, would arrive at Pitt’s dam, owing to the great distance between the two points, and the amount of water which would be lost by percolation, evaporation, and absorption along the banks and bed of the river, and from other causes. I am unable to say from the evidence given upon this hearing that if defendant is allowed to divert the quantity of water he has been, and is now, using, it would not injure the complainant, or that it would not constitute a violation of the injunction. On the other hand, I am of opinion that the weight and preponderance of the evidence lead inevitably to the conclusion that the acts committed by the defendant have resulted in a clear violation of the order made by the court, both in its letter and spirit. It is the duty of courts to compel obedience to their decrees and orders. It would lead to endless confusion and uncertainty to allow parties against whom an injunction has been issued to be themselves judges of the propriety of the relief to which they think they are entitled. Owing to these and other manifest and obvious reasons, I am of opinion that the proper proceedings to be taken in a case like the present, where the defendant claims to have acted in perfect good faith, would have been for him to have applied to the court for a modification of the injunction, so that his rights could have been fully heard
The defendant in this case was bound to obey the injunction, and, when he interfered with the court’s order, he was acting at his peril, lie certainly ought not to hare acted upon his own judgment as to what his rights were, when it was manifest that his acts would, at least, amount to a technical violation of the terms of the injunction. It was not for him to set up his own opinion as to the meaning and effect of the injunction. If he entertained any doubt as to what he might do without violating the injunction, he should have applied to the court for a modification of the injunction, or for the privilege .of doing certain acts which, by the advice of counsel, he claims he had the right to do.
In 2 High, Inj. § 1416, it is said:
“If defendant is in doubt as to tlie scope or extent of the injunction, he should not willfully disregard or violate it, with a view of testing such questions, but should apply to the court for a modification or construction of its order.”
See, also, Wells, Fargo & Co. v. Oregon Ry. & Nav. Co., 19 Fed. 20, 22; Ulman v. Ritter, 72 Fed. 1000, 1003; Wilber v. Woolley, 44 Neb. 739, 743, 62 N. W. 1095; Magennis v. Parkhurst, 4 N. J. Eq. 433, 436; Shirk v. Cox, 141 Ind. 301, 304, 40 N. E. 750; People v. Bouchard (Sup.) 27 N. Y. Supp. 201, 202.
The belief, motive, or intent of the defendant not to violate the injunction does not excuse him if in fact his acts resulted in a violation of it.' The breach of the injunction consists in doing the forbidden tiling, and not in the intention with which it is done. Cartwright’s Case, 114 Mass. 230, 239; Thompson v. Railroad Co., 48 N. J. Eq. 105, 108, 21 Atl. 182; State v. Bowman, 79 Iowa, 566, 44 N. W. 813; Baker v. Cordon, 86 N. C. 116, 121; Plate Co. v. Schimmel, 59 Mich. 524, 528, 26 N. W. 692; 2 High, Inj. § 1418; 7 Am. & Eng. Enc. Law (2d Ed.) 76, and authorities there cited.
In 1 Beach, Inj. § 250, the author says:
“The opinion of the party enjoined that he is not violating the injunction does not excuse the violation. But if he acts in good faith, and under advice of counsel, and causes but trifling injury to the enjoining party, his offense is mitigated.”
Courts are always disposed to allow a fair latitude of construction as to the terms of the injunction, and in many cases only require that it should be obeyed in its spirit, so that no injury should be occasioned to the complaining party. But they are never inclined to look with any degree of indulgence on schemes which are devised to thwart their orders. Any person who chas been enjoined, who undertakes to see how far he can go or what he may do without crossing the prohibited line, places himself in a dangerous condition, and is always liable to be deemed guilty of contempt; for his own judgment may be so warped by his feelings or necessities that he is liable, even unintentionally, to overstep the legal bounds.
In High, Inj. § 1427, the author says:
*430 "It is not proper for a defendant who has been enjoined to experiment with a view of determining how near he may come to a violation of the injunction without actually violating it.”
See, also, Craig v. Fisher, 2 Sawy. 345, 347, Fed. Cas. No. 3,332.
The difficulty which he encounters in determining, in his own mind, what he can do without disobeying the injunction, forms no excuse for violating it. If he knowingly violates the injunction, he may be punished for contempt of court, although he would be entitled to have the injunction modified or discharged upon the trial of the merits of the case.
I am satisfied, from the evidence in this case, that the defendant did not act willfully in the premises, and that he merely intended to test the legal question, and believed that he could do so without violating the injunction; but in so acting he did disobey the injunction. In such cases the cqurts have generally, if not universally, held that only, a moderate punishment should be imposed. When the advice of counsel has been sought and given in good faith, it constitutes an important element in determining what the judgment of the court should be. It should always be considered by the court in mitigation of the punishment, but it does not constitute any justification or defense for a violation of the injunction.
The rule upon this subject is clearly stated in High, Inj. § 1420, as follows:
“As regards tbe rights of persons affected by an injunction, the fact that defendant has violated the mandate of the court under the advice of counsel constitutes no sufficient ground of defense in his favor. We have already seen that the motive with which the breach is committed constitutes no excuse for the wrongful act, and equity will protect persons affected by the writ from any violation of its terms, even though committed under the sanction and advice of counsel. * * * It is to be observed, however, ■ that, while the fact of defendant having committed the breach under the advice of counsel * * * affords no justification for his conduct, yet, if such advice be given in good faith, it may properly be taken into account in determining the degree of punishment to be inflicted for tbe breach, and may thus palliate, although it cannot justify, the violation.” Transportation Co. v. Ciancimino (Sup.) 17 N. Y. Supp. 125, 127; West Jersey Traction Co. v. Board of Public Works of Camden, 58 N. J. Law, 536, 540, 37 Atl. 578; 1 Am. & Eng. Enc. Law (2d Ed.) 898, and authorities there cited; 7 Am. & Eng. Enc. Law (2d Ed.) 77.
The judgment of tbe court is that defendant pay the costs of this proceeding (about $75), and, upon payment thereof, that he be discharged from custody.
