155 P. 463 | Cal. | 1916
Lead Opinion
The United Railroads brought its action to enjoin the city and county of San Francisco, operating a municipally owned electric street railway, from using a portion of its tracks, poles, and wires owned in common with the *82
municipality, and of its terminal loops owned by it exclusively, with cars in excess of the number which plaintiff contended defendant was entitled under contract to use. The trial court granted an injunction pendente lite, in terms requiring the defendant to desist and refrain from operating this excess number of cars upon the tracks and around the loops. Defendant promptly appealed from this order granting the injunction pendente lite, and continued to use the property as it had been doing. Plaintiff proceeded in the superior court to cause the mayor of San Francisco and the members of the city's board of public works and the superintendent of the municipal railways of the city to be cited and punished in contempt for violation of the injunction pendente lite. The trial court refused to issue the citation in contempt, and this original writ of mandate was sued out to compel the superior court to perform what petitioner conceives to be that court's manifest duty in the premises. It is well settled that in proper cases the superior court should so cite and punish for disobedience to its orders, including injunctions, and it is equally well settled that mandate is the proper remedy where the court refuses to hear and decide such a contempt proceeding. (MercedMining Co. v. Fremont,
The justification of the court's refusal to proceed, it is declared, rests in the fact that the operation of the injunction pendente lite was stayed by the appeal taken from it. It is well settled, indeed conceded, that an appeal does not stay the operation of a preventive injunction. Equally well settled is it that an appeal does stay the operation of a mandatory injunction. The argument is that the injunction here under review belongs to the latter class.
Equities are weighed in granting or refusing a temporary injunction, and are to be considered in interpreting it. What are those equities in this case? Fairly to review them the consideration must be divorced from the fact that the defendant is a municipally owned railroad and a popular institution of the city of San Francisco, and the case considered as in every proper judicial aspect it is, simply a controversy between two private street railroad litigants. So considering it, no difficulty will be experienced in determining what are the equities. *83 Street Railroad A contends that by contract it has agreed to permit Street Railroad B to use a portion of its tracks owned in common, and of its terminal loops owned by it exclusively, for a limited number of cars, and asks to have Street Railroad B restrained from using its property with cars in excess of the contract number. If A is right, then the injury which it is suffering is clear, and lies in the unwarranted invasion and use of its property, in its depreciation by wear, in the illegal congestion and hampering of its own traffic, and in its monetary loss occasioned by its rival carrying passengers who otherwise would patronize A's cars. A temporary injunction is granted. What now are the equities? If the injunction is prohibitive, B is wholly and fully protected, until final determination, by the bond which A is compelled to give. Every dollar of loss which B may sustain will thus be made good. But what is A's position, if this injunction is mandatory? B takes an appeal from the injunction pendente lite, and stays its operation without filing any undertaking, and proceeds to make free use of A's property without the slightest security. This continues until judgment on the merits, when the injunction is made permanent. Again B appeals, and again destroys the purpose and effect of the injunction pending appeal, and still continues, without security to A, to injure it financially and deprive it of valuable property rights. And this is precisely the result in this case. Defendant has continued to use the property pending this decision, and while this phase of it has been held here under advisement, the cause has been tried and determined on its merits in the superior court, and plaintiff has been awarded a permanent injunction from which, of course, an appeal will be taken. If this in fact be a mandatory injunction, petitioner will thus be compelled, without hope of recoupment, to bear great financial loss until final determination of the controversy. A consideration of the broad equities thus outlined will not serve to change in the slightest the character of the injunction, but they aid in understanding the true character of the relief awarded, its nature and necessity.
To destroy all of plaintiff's rights pending the final determination of this litigation, or putting it conversely, to give the defendant all that it claims, the justice of which claims is denied by the trial court, we are asked to hold that this is a mandatory injunction. In terms it simply forbids defendant *84 to use the tracks and loops with an excess number of cars. To the common understanding this would appear to be an order to defendant to stop doing something, not to compel it to do something else, and no more mandatory in character than an order telling a man to desist from throwing his rubbish in his neighbor's vacant lot. But it is said that while merely preventive in terms, it is really mandatory in effect, and compels defendant to surrender real property, or something in the nature of it, an incorporeal hereditament, of which he has possession by the use of the excess cars. Of course no case is cited — none can be cited — which holds that an injunction such as this under review calls for the surrender of the possession of real property. But it is argued that theprinciple of the cases dealing with an actual order to surrender possession of realty is applicable to this case.
Thus a very narrow shoe is elastically stretched to fit the defendant's very large foot. Let us apply, then, the same principle to a parallel case in which a great city is not defendant. A is the owner of land. B is engaged in the trucking business. A for a limited period of time licenses B to use a convenient short-cut across his land as an easement or private right of way with power to confer similar rights upon another. B in turn licenses C (who is in the same business) to use this private right of way to the extent of operating across it ten trucks a day. Soon C is operating fifty trucks. B protests. C is obdurate. B seeks to enjoin C from driving more than ten trucks a day over this right of way. It is a gross interference with B's business. The court finds B's contention well founded and C to be acting without right, and forbids C from employing more than ten trucks. What is the difference between the two cases? Nothing in principle, nothing in fact, saving that in the actual case here presented a large municipality is the party defendant. And what would have been the answer, in the supposititious case, had C appealed and contended that the appeal stayed the operation of the injunction because it was mandatory? Unhesitatingly C would have been told that every separate act of his in causing one of his excess trucks to be driven over B's right of way was a trespass subjecting him to an action at law, that it is one of the peculiar provinces of equity to restrain and forbid by injunction precisely such repeated acts of trespass where the loss sustained is difficult of admeasurement, and where the legal redress involving *85
a multiplicity of suits is wholly inadequate; that an injunction restraining trespass is not mandatory, it is strictly prohibitory within the exact language of section
Returning to the argument of the city, it is this: That the right to use the rails of the United Railroads is an incorporeal hereditament, an interest in real property which can be enjoyed only by use, and the possession of which can be manifested only by running the cars over the tracks from time to time; that as the city had been thus for several months operating its excess cars over these tracks, under claim of right, and had not been, at any time, actually prevented by the United Railroads from so doing, the city was in legal possession of the interest claimed and, consequently, the injunction, though prohibitory in form, requiring it merely to cease operating such cars, is, in effect, an order directing the city to relinquish its possession of the incorporeal hereditament and, therefore, mandatory in character.
If this argument were valid, it would put an end to the universally established doctrine that equity enjoins by preventive injunction the commission of repeated trespasses affecting realty where legal redress would require a multiplicity of actions or where the wrongful use, if permitted to continue, would eventually ripen into a right by prescription. The application for an injunction would be met by the statement that the defendant had been in actual use of the right claimed, that this was equivalent to legal possession thereof, and that injunction will not lie to oust one who is in peaceable possession, *87
since there is an adequate remedy at law by an action to recover possession. That such doctrine cannot be maintained is apparent. The answer is that the repeated entries without right upon the land of another is not possession thereof. It is nothing more nor less than a series of continuing trespasses, each a wrongful act, and no one nor all of those acts become rightful until by the lapse of time necessary to establish title by prescription the trespasser has become the legal owner of the right to use the way. (Chattanooga Terminal R. Co. v.Felton, 69 Fed. 273, 277; Coatsworth v. Lehigh Valley Ry. Co.,
There is no magic in the phrase "maintaining the status quo" which transforms an injunction essentially prohibitive into an injunction essentially mandatory. The phrase is commonly employed in discussing mandatory injunctions compelling the surrender of possession of realty by the actual peaceable occupant at the time the injunction has been secured. Indeed, the phrase has been defined to mean "the last actual peaceable, uncontested status which preceded the pending controversy." There was no such uncontested possession here. It is undisputed that petitioner protested before beginning its action, protested vigorously against the misuse of its property, and only brought its action when its protests were disregarded. It is not easy to perceive what more the plaintiff should have done in the assertion and maintenance of its rights. Nor, upon the other hand, can it be perceived how the conduct of the city officials conferred upon the city any new rights. When in New York the creation of a new right was asserted, upon a similar state of facts, the supreme court of that state found no difficulty in declaring: "But this failure and acquiescence amounted to simply a license for the time being, and was not sufficient to create any permanent and irrevocable right." (Chapman v. Syracuse Rapid-Transit Ry. Co., 25 Misc. Rep. 626, [56 N.Y. Supp. 250].)
Sufficient has been said, we think, to show that when the character of an injunction is subjected to review before a higher tribunal, that tribunal, in the exercise of its equitable jurisdiction, seeks first to determine the nature and adequacy of the relief granted. It will not condemn an injunction even if it be mandatory in character, for injunctions of this character, *88 when they afford the only adequate means of relief to a petitioner, are steadily growing in favor. (1 Joyce, Injunctions, sec. 101; 1 Beach, Injunctions, sec. 101.) So, too, the court will not destroy the relief granted by any excessive astuteness in selecting some minor mandatory feature of the injunction and holding that that should control the consideration of the nature of the relief awarded. What essentially are the features of this injunction? The defendant is not compelled to surrender any possession. It retains its possession. But it is forbidden from making what the court has determined to be an illegal and improper use of that possession.
There are but few jurisdictions where appeals, even when appeals are permitted, are allowed to operate to stay the effect even of a mandatory injunction. In this state such an appeal does so operate. But in other states, where a similar rule prevails, the courts have been swift in holding that the character of a prohibitive injunction was not transformed and made mandatory because it incidentally involved the doing of an affirmative act. A man has unlawfully diverted the water of a stream above his neighbor's land. The neighbor seeks to enjoin this diversion and the court grants the prohibitive injunction restraining him from further diverting the water. But he has already diverted it, and to comply with this injunction requires him either to shut down his headgate or fill in the diverting ditch. Here is compulsion upon him to do an affirmative act. Yet the supreme court of Georgia, like this court, found no difficulty in declaring that this incidental fact did not change the character of the injunction. (Goodrich v. Georgia R. Banking Co.,
And we may properly conclude this discussion by a quotation from one of our own early cases (Merced Mining Co. v. Fremont,
Sufficient we think has been said to show what other courts have declared to be the true principle governing the construction of injunctions. In this state the same principle was at a very early date pointed out, as appears from the quotation in Merced Mining Co. v. Fremont,
It thus conclusively appears that in its essence this injunction is prohibitive and restrains continuous acts of trespass upon plaintiff's property. Clute v. Superior Court,
As little pertinency is there in the argument that after the issuance of the injunction the defendant continued in the enjoyment of its alleged rights. It continued this enjoyment only by the open defiance on the part of the mayor and other municipal officers to which we have adverted, and a complete answer to this is found in the language of the court of appeals of New York, in Sixth Avenue R. Co. v. Gilbert El. R. Co.,
Let mandate issue as prayed for.
Shaw, J., Melvin, J., and Lorigan, J., concurred.
Concurrence Opinion
I concur in the judgment. While the question is not to my mind free from doubt, I have come to the conclusion that the injunction should be viewed as prohibitive rather than mandatory.
The solution of the problem is not greatly aided by an examination of the authorities cited on either side, for in none of them was there presented a set of facts at all like those before us here. A mandatory injunction is one which commands affirmative action by the defendant. The character of the order as mandatory or prohibitive is not determined by *91
the form of words in which it is cast. Affirmative action may be required by phrases which on their face purport to prohibit. An injunction which restrains directors of a corporation from refusing to recognize the plaintiff as one of their number is mandatory because in effect it compels them to recognize him. (Foster v. Superior Court,
I agree, therefore, that this injunction does not command affirmative action, but prohibits the repetition of acts found by the court to be unlawful. It is not made mandatory by the fact that the commission of such acts had gone on for some time before the commencement of the action.
Concurrence Opinion
I concur in the judgment and in the opinion of Mr. Justice Sloss. While at first inclined to the view that the facts of this case made applicable the doctrine of the decision inClute v. Superior Court,
Dissenting Opinion
I dissent. Upon the record before us, it seems to me that there can be no question but that the injunction changes the status of the city and county of San Francisco in relation to its claim of right to operate the "C" and "D" cars over the outer tracks on Market Street and the loop on the Embarcadero — a right which had been peacefully enjoyed with the apparent acquiescence of petitioner for some months prior to the commencement of the action. To disturb such a status involves the exercise of mandatory authority. And "it is thoroughly settled that, while an injunction which merely has the effect of preserving the subject of the litigation in statu quo is not suspended by an appeal (Merced Min. Co. v. Fremont,
As to the "C" and "D" cars, it was sought to compel the said city and county to abandon the use and occupation of the tracks which would have had the result of placing the petitioner in the precise position it seeks through a permanent injunction.
On the score of the equities involved, it is to be kept in mind that if the legal effect of the injunction was to make it prohibitory, its enforcement would have worked a serious injury *94 not alone to the said city and county, but to the public at large, by reason of the interference with the expeditious transportation of passengers to and from the Panama-Pacific International Exposition, to which service these cars were particularly dedicated. And as the proceeding may involve the liberty of the persons sought thereby to be brought before the superior court, any doubt touching the question of the character of the injunction should be resolved against the petition.