188 P. 313 | Cal. Ct. App. | 1920
The appeal is by the plaintiff from an order dissolving a restraining order and denying a motion for an injunctionpendente lite.
This complaint is verified and is in two counts. In the first thereof it is stated that one Charles Margaroli is the owner of certain land in the county of San Luis Obispo; that, on August 14, 1917, said Margaroli "let the said premises to plaintiff for ten years from said day; that the defendants withhold possession thereof from the plaintiff, to the *598 great damage of the plaintiff in the sum of five thousand dollars."
In the second count, the allegations of the ownership and letting of said premises are repeated, and it is then alleged that the sole value of the land is for the mineral deposits therein contained; that the defendants withhold the possession thereof from plaintiff; that they had invaded and were invading the mining excavations made therein by the plaintiff's predecessors in interest; that they threatened to continue to invade said excavations, to extend the same and make other excavations in said land for the purpose of mining the said premises; and that they had converted and were converting and threatening to continue to convert the mineral deposits therein to their own use against the will and consent of plaintiff and to his irreparable injury.
Upon the filing of the complaint an order was granted restraining the defendants from mining upon the premises described in the complaint and an order to show cause why an injunction pendente lite should not issue was made.
In opposition to the motion there was filed an affidavit of defendant, Arata. It was therein denied that Charles Margaroli was the owner in fee simple of the premises in question, and it was stated that defendants are the owners of all minerals in said lands and are entitled to the possession of said lands for the purpose of extracting ore therefrom and have been so entitled to possession for more than fifteen months last past, at which time they commenced mining operations which have been continuously prosecuted; that they have expended in the improvement and development of said mine large sums of money, and that the same has been made a valuable producing mining property by their said work and expenditures; that for several months last past plaintiff and said Margaroli had actual knowledge of said mining operations and made no objections thereto; that the continuance of said mining operations would not impair the value of said mining ground but would enhance the value of the same and would not destroy the value and substance of said mining ground; that unless defendants are permitted to continue their work and care for said mine it will, by the caving of tunnels and the falling of earth, become impossible to work and "defendants' work and improvements thereon will be ruined and lost, said mine will *599 become unworkable, and they will suffer damage to the extent of twenty-five thousand dollars or fifty thousand dollars.
"That the market price of the ore [chromate of iron] produced from said mine is at present high, but that the present price thereof is due to war conditions and may at any time drop, and that said mine cannot be operated at a profit should said price fall to the point it was before the commencement of the present European war. That it is greatly to the advantage of the owners of said mine that as much as possible of said ores be extracted and sold while the price is high; that great loss will be sustained by defendants and their entire investment doubtless be lost if they are prevented from operating said mine during the present period of high prices. That defendants are solvent and able to respond in damages should judgment be had against them."
A hearing was had, at which the restraining order was dissolved and the application for a temporary injunction denied.
[1] The defendants do not assert that they claim ownership of the lands in dispute, nor is it made to appear from the affidavit filed by them in support of their application to dissolve the restraining order and of their opposition to the motion for an injunction pendente lite in what way or from what source they obtained the right to the possession of the property in controversy for the purpose of extracting therefrom the minerals deposited in said lands or how they acquired ownership of the said minerals. But we deem this immaterial, as we can conceive of no reason why the source of a party's title to property should be shown on an application for a restraining order or an application to dissolve such an order, where previously made, affecting the right of the party in possession to use such property pending the determination of the question of ownership or the right to the possession of the same as between litigants in an action brought for that purpose. As to this feature of a showing for or against the issuance of a restraining order or the granting of an injunction pendentelite, it is sufficient, if the court before which the application is made accepts it, if it be made to appear therefrom that the party making the application denies the *600 adversary party's ownership or of right to the possession of the property as to which the application for a preliminary injunction or the dissolution of a restraining order is made and it further is likewise made satisfactorily to appear that the applicant for or against the temporary relief sought has some claim of right to the property involved or the possession thereof. Hence, we repeat, it is not indispensably essential that in an application for such preliminary relief the party making it should disclose the source of his title to the fee in the property, if he has such title, or how his right to the possession thereof arose. The affidavit of the defendants in the present case, upon which the court below manifestly predicated its order dissolving the restraining order previously made and refused to grant a preliminary injunction, unequivocally states that the defendants have for a long period of time prior to the institution of this action had rightful possession, and still have such possession, of the lands in controversy and the right to extract mineral ores therefrom. It is further shown by said affidavit other facts, of which a fair synopsis is given above, and which, therefore, need not be specifically repeated here, which not only tend to show that irreparable injury to the physical properties of the mine, but to the defendants in a financial way, would inevitably ensue from an order stopping the operation of the mine by the defendants. It is likewise further shown, it will be noted, that the plaintiff, for several months prior to the filing of the affidavit by defendants, had actual knowledge of the working of the mine by the defendants and the large expenditures of money made by the latter in making improvements and furnishing mechanical and other equipments essential to the proper and profitable operation of the mine.
To hold that the court below erred in its action dissolving the restraining order in this case and refusing to order a preliminary injunction, it would be necessary for us to declare that the court abused its discretion in that regard. Upon the showing made by the defendants, we cannot say that the order dissolving the restraining order and refusing further to tie the hands of the defendants involved an abuse of the discretion committed to trial courts in such a proceeding. *601
[2] It is as firmly settled as is any rule of law that whether in a particular case a restraining order or an injunction pendente lite should be granted or refused is a matter resting largely in the discretion of the trial court before which the application is made and heard. (See Raub v.Los Angeles T. Ry. Co.,
The court below was within its rights in concluding that it was at least very doubtful whether the power should be exercised in behalf of the plaintiff here. The court could also well conclude from the showing that there was no need for hasty action, and that, since it was made to appear that the defendants are solvent and able to respond in damages for any injury which the plaintiff might suffer, the element of "irreparable injury" was wanting as the basis for the provisional injunctive relief prayed for.
The very early case of Real Del Monte M. Co. v. Pond M. Co.,
The similarity between the above and the present cases is manifest. Here, as there, the restraining order was based entirely on the complaint. Here, as there, the ownership of the plaintiff of the property and his claimed right to possession are disputed, and, therefore, cannot be said to be clear and well established. Here, as there, the plaintiff, although for several months in possession of actual knowledge of the operation of the mine by the defendants, did not proceed against the latter until they had expended large sums in the improvement of the property for the purpose of facilitating the proper operation of the mine. In other words, the plaintiff delayed asking for the provisional relief involved in the temporary restraining order and in an injunction pendente lite until large sums had been, with his knowledge, expended by the defendants in the equipment of the mine for its proper operation as such.
[4] But it is intimated by counsel for the appellant that resistance to a motion for a preliminary injunction pending the determination of the litigation must be supported *603 by a verified answer, and cannot be supported by affidavits only. We see no merit in the point and nothing in the cases cited by the appellant which supports it.
Section
[5] The appellant, in his somewhat elaborate brief, cites a large number of cases and other authorities as supporting his position that the court erred or abused its discretion in refusing to grant a preliminary injunction and in dissolving the temporary restraining order. But the facts in the cases referred to will be found, upon examination, radically at variance with those of the case at bar. We may refer specifically to two of the cases only so cited — the principal ones relied upon by appellant — as illustrative of the distinction between this and all the cases mentioned in counsel's brief. In Hunt v. Steese,
The other case referred to — Marks v. Weinstock, Lubin Co.,
In this case, as has been shown, the affidavit was made by one of the defendants, and, while the statement therein as to the right of the defendants to the possession of the property may in a measure involve an ultimate fact or conclusion, said statement is aided and supported by the statement in the affidavit that the defendants "more than fifteen months last past commenced mining operations thereon [said property], having continuously prosecuted the same thereafter up to the commencement of this action, and have extensively improved the same so as to make it capable of production," etc. *607
Thus it will readily be perceived that there is a pronounced distinction between the case of Marks v. Weinstock, Lubin Co. and the instant case as to the facts.
We conclude, as declared above, that, upon the record before us, we cannot justly say that the court, by dissolving the temporary restraining order and refusing to grant an injunctionpendente lite, abused its discretion.
The order appealed from is accordingly affirmed.
Ellison. P. J., pro tem., and Burnett, J., concurred.