Wood v. Millspaugh

15 Kan. 14 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

At the commencement of this action a temporary injunction was allowed to restrain the defendant ■ Millspaugh from erecting a mill-dam on Walnut river, in Cowley county, so as to cause the water thereof to flow back and into Dutch creek, a tributary of Walnut river, and thereby to overflow the plaintiff’s land. Afterward the judge of the court below, at chambers, vacated the order of injunction; and the plaintiff, excepting thereto, brings the case to this court for review. The reasons urged for and against the temporary injunction are very nearly equally balanced, and therefore, as district courts, and the judges thereof, have considerable discretion in allowing or disallowing, and in sustaining or vacating temporary injunctions, we must sustain the order of the judge below vacating the temporary injunction allowed in this case. Even if the reasons in favor of sustaining a temporary injunction should slightly preponderate over those against it, still that would not be sufficient to authorize this court to reverse an order of the district court or a judge thereof vacating a temporary injunction, unless the preponderance should be so great that this court could say that the district court or judge had abused its or his discretion.

The order of the judge of the court below is affirmed.

All the Justices concurring.