71 P. 613 | Idaho | 1903
This action is here on appeal from an order granting a preliminary injunction made by the district judge of Ada county on the twenty-third day of July, 190.2. The complaint alleges that plaintiffs, with defendants, are the owners of what is known as the “Peninger lateral” — a ditch diverting water from what is known as the “New York canal”; that the same is a community ditch, etc. The second allegation sets out the course, lands through which it passes, etc. The third is that each of the plaintiffs are owners of tracts of land in Ada county under and tributary to said lateral. ' Fourth. That their lands are desert in character, and require the application of water to reclaim, produce crops, etc. Fifth. That said lateral is the only convenient means by which water can be carried from said lateral to their lands. Sixth. That plaintiffs have respectively placed under cultivation a large part of their lands, and that the same are now in a high state of cultivation, and are in need of water, etc. Seventh. That defendants have wrongfully, and without consent of plaintiffs, or any of them, at a point above the lands of plaintiffs, and in the vicinity of the point where the lateral diverts water from said canal, placed in said lateral check-gates which prevent the water belonging to plaintiffs from flowing through said lateral to said tracts of
This complaint was filed June 27, 1902, and on the same day the judge made the following order and injunction:
“Order.
“The plaintiffs in the above-entitled cause having commenced an action in the above-entitled court against the above-named defendants, and having prayed for an injunction against the said defendants, requiring them to refrain from certain acts in the complaint filed herein, and hereinafter more particularly mentioned, on reading the said complaint in the said action, duly verified by the oath of H. G-. Wilson, one of the plaintiffs in the said action, and it satisfactorily appearing to me therefrom that it is a proper case for an injunction, and that sufficient grounds exist therefor, it is hereby ordered by me, judge of said court, that upon filing by said plaintiffs of an undertaking in the sum of $250, duly conditioned as required by; law, with the clerk of said court, there issue out of such court, under the seal thereof, a writ of injunction restraining said defendants, and each of them, their agents, servants, attorneys, lessees, and employees, and all others acting in aid or assistance of each or .every of them, from in any manner maintaining
“Injunction.
“To the Above-named Defendants, Greeting:
“The above-named plaintiffs having filed their complaint in our court against the above-named defendants, praying for an injunction against said defendants, requiring them to refrain from certain acts in said complaint, and hereinafter more particularly mentioned; on reading the said complaint in this action, and it satisfactorily appearing to the judge of said court therefrom that it is a proper case for an injunction, and that; sufficient grounds exist therefor, and the necessary and proper undertaking having been given: We, therefore, in consideration thereof, and of the particular matters in the said complaint set forth, do strictly command that you, the said A. H. Eagle-son, John W. Eagleson, and Ern G. Eagleson, until the further order of said court, and your, and each of your, attorneys and agents, servants, lessees, and employees, and all others acting in aid or assistance of you, or .either of you, do absolutely desist and refrain from maintaining any obstruction in that certain ditch or lateral known as the ‘Peninger lateral/ and taking water from the New York canal at a point in the northeast quarter of the southeast quarter of section 20, township 3 north, range 2 east, ikda county, Idaho, and extending thence in a northwesterly direction through the southwest quarter of the northeast quarter and the southeast quarter and southwest quarter of the northwest quarter of said section 20; thence through the northeast quarter of the northeast quarter of section 39 in said township; thence in a westerly direction along the northern boundary of said section 19; also along the northern boundary of section 24 in township 3 north, range 1 east; thence in a northwesterly direction through sections 14, 15,
“Witness: Hon. Geo. H. Stewart, judge of the said judicial district court, at the courthouse in the county of Ada, and the seal of the said court, this twenty-seventh day of June, 1903.
“[Seal.]”
On July 9th defendants filed their verified answer, denying that plaintiffs, or either of them, are the owners of any interest, estate, or title in the Peninger lateral at any point from the headgate of said lateral to and across the north half section 30, township 3 north, range 3 east, in Ada county, or any right to use said lateral for carrying water, except as hereinafter expressly admitted. Aver that at all timps herein mentioned defendant A. H. Eagleson has been, and still is, the owner and in possession of the north half of section 30, township 3 north, Tange 3 east, and that the check-gates mentioned in the complaint herein are situated on the southeast quarter of northeast quarter of said section 30, and that said check-gates as well as the part of said lateral whereon the same are situated, is wholly situated upon the land of defendant; that said defendant, together with the New York Canal Company, Limited, owner of said New York canal, and plaintiff George Peninger, constructed said Peninger lateral from said headgates to said cheek-gates in the winter of 1900-1901, and completed the same in the spring of the year 1901, at which time, and as a part of the original construction thereof, defendants constructed the check-gate complained of herein; that at the time said lateral was constructed there was an understanding between defendant
After this answer was filed, a motion to quash the temporary injunction was interposed, and on the twenty-third day of July, 1902, the district judge made the following order:
“ On reading and filing the affidavits, and after hearing, Richards & Haga appearing for complainants, and Martin & McElroy appearing for defendants, it is now, on motion of Richards & Haga, attorneys for plaintiffs, ordered that a preliminary injunction issue against the said defendants, and -each of them, their agents, servants, lessees, attorneys, or •employees and each of them, from maintaining the check-gate mentioned in the complaint at a greater elevation than fourteen-inches from the floor of such check-gate, as now situated, and not less than sixty inches in width between the interior of .the side walls of said check-gate.
“GEO. H. STEWART,
“Judge.”
In the argument, counsel for defendants say: "The case then tendered by the plaintiffs is purely for the abatement of a nuisance, and not for the determination of conflicting claims to a canal, or water carried by a canal. We have attempted to classify our contentions under six subdivisions, to wit: 1. The court should not order injunction to issue without an adequate undertaking in form required by law.”
As to the sufficiency of the bond in question, we only desire to say that it was a matter wholly within the discretion of the district judge, and we do not see wherein such discretion was abused. We may say, also, that counsel for appellants do not
The next question urged by counsel in their able and exhaustive brief is that the bond was defective, for the reason that the sureties did not state that they were householders or freeholders within this state, in their justification as such sureties. The justification is as follows: “State of Idaho, County of Ada — ss.: Judson SpofEord and W. H. Thompson,, whose names are subscribed as sureties to the foregoing undertaking, being severally duly sworn, each for himself says that he is a resident and .... holder within this state, and is worth the sum in said undertaking specified as the penalty thereof, over and above all his just debts and liabilities, exclusive of property exempt from execution.” This justification was before the clerk of the district court of Ada county, on the twenty-seventh day of June, 1902, and approved by the district judge on the same day. In support of their contention that this bond was defective, counsel call our attention to section 4934 of the Revised Statutes of Idaho. This section, among other things, says: “The officer taking the same [referring to the undertaking]] must require the sureties to accompany it with an affidavit that they are each residents and householders or freeholders within the territory,” etc. This question was passed upon by this court in Miller v. Pine Min. Co., 3 Idaho, 603, 32 Pac. 207. The court says: “The affidavit which is usually attached to a bond contains the justification of the sureties under section 4934. It is, however, no part of the undertaking, and the undertaking is complete without it.” And the court cites 2 Hayne on New Trial and Appeal, section 213. We take it that the requirement of the statute in the justification of the sureties is more in aid of the officers who have to approve the bond, than any validity it may give to the bond; and in this case, if the district judge was fully satisfied that the bondsmen were able to respond in the amount named as a penalty, it would have been of no advantage to him to have them justify that they were freeholders or householders of Ada county. If, on the other hand, there was a question of their responsibility in his mind, he could have required them to take the statutory oath.
It is next urged that it does not appear that plaintiffs have not an adequate remedy at law. It is true, plaintiffs do not allege the insolvency of the defendants, but they do say that "the damage to the crops growing upon these lands could not be justly estimated.” Counsel for appellants call our attention to Fulton Irr. Ditch Co. v. Twombly, 6 Colo. App. 554, 42 Pac. 254. This ease supports the contention of appellants, but our attention is not called to any statutory provision of that state similar to section 4288 of our statute. However, we have examined the Civil Code of Colorado, and find no section corresponding with said section 4288. It reads: "An injunction0 may be granted in the following eases: 1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. 2. When it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, great or irreparable injury to the plaintiff. 3. When it appears during the litigation that the defendant is doing, or threatens, •or is about to do, os is procuring or suffering to be done, some act in violation of the plaintiff’s rights, respecting the subject of the action, and tending to render the judgment ineffectual. 4. When it appears, by affidavit, that the defendant during the pendency of the action, threatens or is about to remove or to dispose of his property with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition. 5. An injunction may also be granted on the motion of the defendant upon filing a cross-complaint, praying for affirmative relief upon any of the grounds mentioned above in this section, subject to the same rules and provisions provided for the issuance of injunctions on behalf of the plaintiff. <6. The district courts or any judge thereof sitting in chambers, in addition to the powers already possessed, shall have power to
Counsel for appellants very earnestly and ably contend under their third assignment that this was not a proper case for a preliminary injunction, mandatory in character, the title of plaintiffs being in dispute, and it being conceded that the removal of the check-gate would inflict great damage on defendr ants. A number of authorities are cited in support of this com tention. • We have examined them carefully, hut cannot agree with -this contention. We think the complaint in this case alleged -sufficient facts to justify the district judge in an effort to protect .the. property of all parties to the litigation, .and, as we ■view it, the only real question before us for review is whether the -district judge was in error in making the order appealed
Counsel for respondents cite a number of authorities in sup-' port of their contention that there was no error in the order made by the district judge, appealed from, or any of the proceedings complained of by appellants. If the district judge did not abuse the discretion vested in him as a chancellor in this case, then the judgment should not be reversed.
We are of the opinion that there was no error in the order of the district judge, and that the judgment should be affirmed. It is so ordered, with costs to respondents.