Summary
In Stalcup v. Cameron Ditch Company, 1956, 130 Mont. 294, 300 P.2d 511, 513, in an opinion, by Mr. Justice Horace S. Davis with Chief Justice Adair and Justices Anderson, Bottomly and Angstman concurring, this court entertained and decided an appeal from a district court order granting defendants' motion to quash a temporary restraining order issued without bond or notice upon plaintiffs' ex parte application therefor made upon the filing of the complaint in the action.
Summary of this case from Guardian Life Ins. v. Bd. of EqualOpinion
No. 9702.
Submitted August 14, 1956.
Decided August 20, 1956.
WATERS AND WATER COURSES, Trespass in building ditch, market value of land, INJUNCTION, Remedy at law not adequate, Discretion to grant a temporary injunction, discretion abused. 1. Waters and Water Courses — Defendants held trespassers in building ditch. In suit to enjoin the defendants from building an entirely new irrigation canal through the plaintiffs' lands along the right of way of an old ditch which defendant owned where capacity of the ditch under construction would be substantially greater than the old ditch and defendants intended to take some three and one-half acres of the plaintiffs' land lying beyond the defined boundaries of a right of way owned by the ditch company, evidence established that defendants were trespassers and that the plaintiffs were entitled to temporary injunction. 2. Waters and Water Courses — Market value not determinable as to irreparable damage. The market value of the plaintiffs' grazing lands which the defendants proposed to take in construction of the new ditch was not determinative of the issue whether the damage done by such taking was irreparable as respects right to injunctive relief. 3. Injunction — Remedy at law not adequate. Remedy at law is not adequate as respects right to injunction merely because a recovery of pecuniary damages is possible. 4. Injunction — Granting or denial of temporary injunction discretionary with court. The grant or denial of a temporary injunction pending a trial upon the merits rests in the sound judicial discretion of the lower court. 5. Waters and Water Courses — Denial of temporary injunction was abuse of discretion. Where evidence showed prima facie that defendants were building an entirely new irrigation canal through the plaintiffs' land along the right of way of an old ditch and that in the course of the work defendants proposed to take some three and one-half acres of the plaintiffs' land lying beyond the defined boundaries of the right of way owned by the ditch company, denial of a temporary injunction was an abuse of discretion where otherwise the subject matter of the litigation would be destroyed and should plaintiffs thereafter prevail upon the merits the judgment would afford them no relief.
Appeal from the District Court of Madison County; Victor H. Fall, Judge presiding.
Mr. Ralph J. Anderson and Mr. Stanley P. Sorenson, Helena, for appellants.
Mr. Frank E. Blair, Virginia City, for respondents.
Mr. Anderson and Mr. Blair argued orally.
Appeal by the plaintiffs (appellants) from an order made after hearing which denied a temporary injunction and dissolved a temporary restraining order theretofore issued. Whether such injunctive relief should be granted pendente lite is the only question presented for our solution.
To refer in detail to the evidence taken below will serve no useful purpose, particularly because when the pleadings have been settled and the cause is tried on its merits the evidence then taken will undoubtedly reflect more fully and more truly the ultimate facts of this controversy than does the record which we now have before us. To dispose of this appeal it suffices that we think the evidence shows prima facie the defendants are building an entirely new irrigation canal through the plaintiffs' lands along the right-of-way of an old ditch, which admittedly the defendant ditch company owns, and which admittedly is correctly described as a "strip of land sixty feet in width, thirty feet on each side of the center line of the Wellcome Irrigation Ditch." It is likewise not disputed that the capacity of the ditch presently under construction will be substantially greater than that of the old Wellcome ditch at any time heretofore, and that in the course of this work the defendants intend to take some three and one-half acres of the plaintiffs' lands, which lie beyond the defined boundaries of the right-of-way owned by the ditch company.
If this is true, and prima facie we think it is, the defendants may not then justify upon the doctrine of Laden v. Atkeson, 112 Mont. 302, 116 P.2d 881, if it be applicable, that in addition to the sixty foot strip expressly defined for the course of the Wellcome ditch, the company also has a secondary easement which authorizes it to enter on the plaintiffs' lands beyond the defined limits of its right-of-way that its ditch may be cleaned out and repaired. For these facts do not show that the defendants propose to clean out and repair the old ditch. Rather as we have said the contrary is made to appear that they are constructing an entirely new canal. In these circumstances Laden v. Atkeson does not help them, even though we were to hold that precedent pertinent where the bounds of the primary easement as here are specifically marked out by the express language of the grant.
As the case comes to us on this record we are persuaded the [1] defendants will be naked trespassers, if they enter upon these three and one-half acres, which they intend to occupy permanently for the construction of the new canal. Hansen v. Galiger, 123 Mont. 101, at page 112, 208 P.2d 1049, at page 1055, and cases cited; 27 C.J.S., Easements, section 94 d, pages 775, 776, section 95 b, page 777; 17 Am. Jur., Easements, section 112, page 1006. This fact appearing prima facie is enough to entitle the plaintiffs to the temporary injunction asked. Parsons v. Mussigbrod, 59 Mont. 336, 341, 196 P. 528; Atkinson v. Roosevelt County, 66 Mont. 411, 421, 422, 214 P. 74; Thrasher v. Hodge, 86 Mont. 218, 283 P. 219; Rea Bros. Sheep Co. v. Rudi, 46 Mont. 149, 160, 127 P. 85.
Moreover, we think the trial judge applied here the correct [2, 3] rule that the market value of the plaintiffs' grazing lands, which the defendants proposed to take, is not determinative of the issue whether the damage done by that taking is irreparable such that relief by injunction may be had. For he excluded all evidence of that market value consistent with the well-settled rule that the remedy at law is not adequate merely because a recovery of pecuniary damages is possible. 4 Pomeroy's Equity Jurisprudence (5th ed., Symons), section 1357, pages 964, 965; Thrasher v. Hodge, supra, 86 Mont. at page 226, citing Pomeroy's Equity Jurisprudence (4th ed.), section 1357, page 3240, note 1.
Of course in the first instance the grant or denial of a [4, 5] temporary injunction pending a trial upon the merits rests in the sound judicial discretion of the lower court. Hansen v. Galiger, supra, 123 Mont. at page 113, 208 P.2d 1049; Atkinson v. Roosevelt County, supra, 66 Mont. at page 421, 214 P. 74; Parsons v. Mussigbrod, supra, 59 Mont. at pages 340, 341, 196 P. 528. But on the evidence taken at the hearing below we conclude the denial here of a temporary injunction, as is the trial court's order presently reviewed, amounts to a clear abuse of that judicial discretion which should govern consistent with our decisions, and particularly with Hansen v. Galiger, supra. There the denial of a temporary injunction was affirmed upon facts which are not be distinguished from those now before us, but which with the parties to that record reversed as we find them at bar compel with equal certainty the conclusion that the temporary injunction here prayed must be granted. Compare Bennett Bros. Co. v. Congdon, 20 Mont. 208, 211, 212, 50 P. 556; Postal Telegraph-Cable Co. of America v. Nolan, 53 Mont. 129, 162 P. 169. Otherwise the subject matter of this litigation will be destroyed; and should the plaintiffs thereafter prevail upon the merits and have judgment, that judgment will afford them no relief whatsoever. Pending a trial the defendants will be adequately protected by the usual bond required upon the issuance of the injunction pendente lite, which will preserve the status quo; for this Wellcome ditch has not been used for sixteen years. This is not denied.
Nothing said in this opinion is to be construed as going to the merits of this litigation, which play no part in our conclusion on this appeal. In what we have here written we have decided no point controlling of the merits which will come before the district court when the trial is had. Compare Atkinson v. Roosevelt County, supra, 66 Mont. at page 425, 214 P. 74; Blinn v. Hutterische Society of Wolf Creek, 58 Mont. 542, 554, 555, 194 P. 140.
Accordingly the order of the district court denying injunctive relief to the plaintiffs and appellants Juanita Davis Stalcup and Clancy R. Stalcup is set aside, vacated and reversed; and the cause is remanded to the district court with directions to issue a temporary injunction in the usual form restraining and enjoining the defendants and respondents from the commission of any of the acts specified in the complaint on file in the district court pending the trial and final determination of the cause therein. Said injunction will be issued by the district court only upon the filing therein within ten days from the date of the order of reversal heretofore entered in this cause on August 14, 1956, of a good and sufficient undertaking on the part of the plaintiffs and appellants in the penal sum of $5,000, conditioned in acordance with the provisions of R.C.M. 1947, section 93-4207, and duly approved by the trial court or a judge presiding therein. Unless theretofore there be compliance with that order the injunction issued out of this court will continue in full force and effect for ten days from August 14, 1956, but no longer in any event. This opinion follows upon the formal order made and entered by this court on August 14, 1956, and will be filed as of that date. Remittitur forthwith.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, ANDERSON and BOTTOMLY, concur.