43 Wash. 34 | Wash. | 1906
The relator brought an action in the superior court of King county to restrain the city of Columbia from grading one of the city streets, upon the ground that such grade would damage the relator’s abutting property, and such, damage had not been ascertained or paid in the mode required by the constitution. A hearing was had on a motion for a temporary injunction, after notice; and upon such hearing the application was denied. The relator thereupon applied to this court for a writ of review to review the order denying the motion for a temporary injunction. The writ
“Independent of legislation, and upon principal as well as authority, it is believed that the true doctrine is, that an order either’ granting or refusing a preliminary injunction, being merely an interlocutory order, made during the progress of the case., does not partake of the nature of a final judgment or decree to such an extent as to warrant an appeal therefrom, or to justify a court of review in, revising the action of the inferior court upon such question.” High, Injunctions (3ded.), § 1693.
“The issuance of a .preliminary injunction which will put restraints upon the, defendant before the rights of the parties have been fully investigated and tried, rests solely in the discretion of the chancellor, and as a general rule his action in ordering or denying a preliminary injunction will not. be reviewed on appeal or otherwise controlled.” 10 Ency. Plead. & Prac., 983.
The legislatures of many of the states have provided for appeals in such cases in one form or another. Bal. Oode, § 6500, subd. 3, allows an appeal,
“From any order granting or denying a motion for a temporary injunction, heard upon notice to the adverse party, and from any order vacating or refusing to. vacate a temporary injunction: Provided, That no appeals shall he allowed from any order denying a motion for a temporary injunction or vacating a temporary injunction, unless the judge of the superior court shall have found, upon the hearing, that the party against whom the injunction was sought was insolvent
There is no finding of insolvency in this ease, and it is conceded that no appeal would lie. ° Colby v. Spokane, 12 Wash. 690, 42 Pac. 112; Anderson v. McGregor, 36 Wash. 124, 78 Pac. 776. Why did the legislature deny an appeal, except in cases of insolvency? It seems to us the reason is obvious. It was not because the legislature had already provided another method for the review of such, orders, nor because it contemplated a different method of review in the
The relator contends^ however, that constitutional questions are involved in this ease> and that a different rule ap¡plies. It is true the relator based his right of action in the court below upon the ground that the defendant was about to damage his property in violation of the constitution of the state, but it is equally true that this claim has been denied by a court of competent jurisdiction. Unless the law otherwise provides, property rights which are safeguarded by the constitution do not stand upon a different footing from property rights which are safeguarded by the common or statute law. All such rights are protected by the same courts and by the same procedure.
In support of this contention, the relator cited State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385, but we think that case is readily distinguished from the case at bar. The court there had under review am order of the supterior court which permitted the defendant to damage the relator’s property and substituted a bond for the damages which the constitution declares must be paid in advance. The order was to all intents and purposes a final order, and the right of review in such cases is governed by entirely different principles. In State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317, 67 Am. St. 706, 40 L. R. A. 317, the writ was issued in aid of the appellate jurisdiction of this court, and the decision has no- application. In State ex rel. Cann v. Moore, 23 Wash. 276, 62 Pac. 769,
We do not propose to discuss the merits of this application, but we think the case before us demonstrates the dangers that may arise from the indiscriminate exercise of the power to issue such writs. The "decision sought to be reviewed is sustained by a clear preponderance of the testimony, there is not even a pretense that the court abused its discretion^ and the application is wholly without merit. Notwithstanding this, the relator has tied the hands of one of the municipalities of the state for a considerable length of time, with what resulting damage we do not know. The municipality has no security for the damage sustained — not even for the costs ini this court, and we must not lose sight of the fact that both parties to the controversy have rights which the courts must respect.
This court has affirmed and reaffirmed the doctrine that a corporation cannot damage propqsy without first making com
Por the reasons stated, the writ was improvidently issued, and the same is accordingly dismissed.
Mount, C. J., Dunbar, Boot, Crow, Hadley, and Pullerton, JJ., concur.