9 Or. 470 | Or. | 1881
By the Court,
This is a suit in equity for an injunction. It comes to this court upon an appeal from a decree rendered upon the overruling of a demurrer which admits the facts alleged to be true. Of these facts, the only material ones are, for the purpose of this case, that on the 5th day of August, 1870, the board of county commissioners made an order pretending to establish a county road through certain lands of the plaintiff’s; that according to the survey said road runs close to the dwelling house of the plaintiff,-and cuts off his present front yard, including part of his grapevines and flowers; that said road was only partially opened in 1870, and that no part of the road was opened more than thirty feet, and that his said grapevines and flowers remained unmolested; that afterwards, on the 3d day of April, 1878, the said board of county commissioners, without any petition to establish a public road, orderecj the supervisor to remove all obstructions in said road, and to open the same through said tract of land of the complainant; that the supervisor has notified the complainant to remove all obstructions to said road; that the same will be opened sixty feet, to the damage of complainant, and prays that the defendants may be restrained.
The granting of an injunction is an equitable proceeding, and the party seeking this peculiar equitable relief should show that he has a right, under all the circumstances, to this extraordinary writ. Where a matter is clearly, or prima, facie, one of legal cognizance, a party must, in order to maintain an equitable action upon it, state facts sufficient to entitle him to equitable relief, and to show that a perfect remedy cannot be obtained at law. (Hegwood v. City of Buffalo, 14 N. Y., 543.)
But in respect to trespass, there is no doubt that the ancient
This brings us to enquire whether the facts and circumstances alleged, and assumed to be true by the demurrer, are siich from which it may be seen that irreparable injury will be the result of the acts complained of, and that the law can afford the party no adequate remedy. For the court must be satisfied, from a statement of the grievances, that the injury would be irreparable, and it is enough if the court can discover this from the allegation of facts. Davis v. Reed, 14 Md., 152; Hilliard on Injunctions, sec. 32.)
In cases like the one under consideration, the gravamen, then, of the action must be a threatened trespass, which, unless restrained, will result in irreparable injury. Now it is alleged that the board of county commissioners ordered the supervisor to remove all obstructions and to open the road, but it nowhere appears that in pursuance of such order, he proceeded or threatened to tear down the fences or enclosure, or to dig up or destroy the grapevines or flowers of the complainant, or to do any act, or threatened to do any act, what
For the purposes of this case, it was conceded at the argument that the order made by the board of commissioners in 1878, ivas illegal and void. The allegations in respect to this matter are not sufficiently set out for the court to pass upon that question, nor is it material to the decision "of this case. But in admitting the same, the respondents5 counsel claimed that nothing had been attempted or threatened to be done under the order, and-for aught that appears in the complaint that the suit was nothing more than an attempt to enjoin a trespass that had not been even threatened by the parties. There is no doubt, however, that courts of equity have jurisdiction to interpose by injunction, where public officers, under a claim of right, are proceeding illegally to impair the rights or injure the property of individuals, or where it is necessary to prevent a multiplicity of suits. (Mohawk and Hudson R. R. Co. v. Artcher, 6 Paige, 88; Belknap v. Belknap, 2 Johns. Ch. Rep., 463; 6 idem., 497.)
It was also conceded by counsel for appellant, that there is no person or body corporate in this state whose name is the board of county commissioners, and that there were no parties defendant except Young. Our code provides, that “ all actions, suits or proceedings by or against a county, are in the name of such county.” (Civil code, section 871.) Nor is it alleged that defendant, Henry G. Young, is supervisor within the jurisdiction of the county commissioners, or anything in respect to his being a duly qualified officer or otherwise, except that lie has the word “ supervisor ” following his name in the caption of the complaint; or that he threatens, intends, or is about to do any injury to the property or rights of the plaintiff.
But aside from this, the reasons are too obvious that the demurrer to the complaint was well taken, and the bill must be dismissed.