23 Kan. 637 | Kan. | 1880
The opinion of the court was delivered by
The purpose of this suit was to restrain the defendant in error from interfering with the flocks of the plaintiff in error in grazing on the wild grass growing on certain land in Lyon county. The petition alleges that the plaintiff is now, and for a long time past has been, engaged
On the 5th day of May, 1879, upon due notice and a full hearing, an injunction was temporarily granted by the probate judge, the judge of the district court being absent from the county. The defendant, without controverting the statements of the petition, on July 24th, 1879, appeared and moved the judge of the district court at chambers to dissolve the injunction. The motion was sustained, on the ground that the petition did not state facts sufficient to warrant the granting of a temporary injunction. The plaintiff excepted, and brings the case here.
The general rule is, that where the injury complained of is in its nature a continuing one, if the defendant persists in inflicting the injury, and an action for damages would be wholly inadequate for the protection of the plaintiff’s rights, equity will interfere and afford relief by injunction. “The jurisdiction rests on the firm and satisfactory ground of its necessity to avoid a ruinous multiplicity of suits, and to give adequate protection to the plaintiff’s property. (Walker v. Armstrong, 2 Kas. 198; High on Inj. 263, §§474, 475.)
As the petition alleges the insolvency of the defendant, and thereby his inability to respond in damages, additional ground for equitable interference is shown. Upon the face of the petition, therefore, there can be no doubt of the power of a court of equity to interpose in behalf of the plaintiff) provided the court has jurisdiction of the subject-matter. No brief or argument has been presented us by the defendant, and we are in the dark for the specific reason of the dissolution of the preliminary injunction. Counsel for plaintiff assert the district judge held that the state courts did not have jurisdiction. If such was the ruling, we think it was erroneous. The land upon which plaintiff claims the right to feed his flocks is a portion of the lands heretofore owned by the Kansas tribe of Indians, and which were ceded to the United States in trust by the treaty of November 17th, 1860. Under the provisions of the acts of congress of May 8th, 1872,
The preliminary injunction was rightfully granted, and its dissolution, an error.
The order of the district court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.