Hueneme, Malibu & Port Los Angeles Railway v. Fletcher

On November 24, 1906, one Joseph H. Call and his wife conveyed to plaintiff a strip of land sixty feet wide across their rancho as a right of way for a railroad. No construction work was ever done upon this right of way. Ten years later Call and his wife deeded to the county of Los Angeles a strip across the rancho, also sixty feet wide, as a right of way for a highway. Nearly fifteen years after the deed to plaintiff the Calls conveyed to the state of California a strip across the rancho eighty feet wide as a right of way for a state highway. The parcels conveyed by these three deeds, except for the greater width of the parcel last conveyed, are practically coterminous and coincident with each other, although each departs from each of the others occasionally along the side lines. The deed to the state recites that it is “subject to any right of way heretofore conveyed by the grantors to” plaintiff. After the conveyance to the state the strip described in its deed was entered upon by defendants, under authority of the state, for the purpose of constructing a state highway along it. Entry was at the same time made upon the parcels formerly conveyed by the Calls to plaintiff and to the county, this being so necessarily because of the practical identity of the three pieces. Defendants then commenced and thereafter for some time prosecuted the work of constructing a state high

The supreme court, in the recent case of Jacobsen v. Superior Court, 192. Cal. 319 [ 29 A. L. R. 1399 , 219 Pac. 986 ], has enunciated the rule that real property cannot be taken from its owner for a public use without condemnation proceedings. Appellant argues the present appeal as if the question passed upon in the opinion cited were the question presented here, but such is not the case. It is true that a right of way was conveyed to appellant in 1906. It is true that the later deed to the state was subject to the deed of 1906. It is not true, however, that the record shows any present title in appellant under the deed of the year named, or otherwise. The alleged title of appellant is put in issue directly under the pleadings. To the averment in the complaint that appellant is the owner of the right of way conveyed by the deed of 1906 respondents interpose direct denial. The question of title in the appellant is therefore in dispute in the case. Not only so, but all the other equities of the complaint are also denied. Except for the allegation as to appellant’s title, the only equities set forth in that pleading are contained in a paragraph which reads: “Before the commencement of this action, defendants, without plaintiff’s consent and against its will, entered in and upon the property of plaintiff herein described and commenced the construction thereon and thereover of a road for public highway purposes, and defendants are now engaged in con

At the hearing various affidavits were presented in support of the contentions of the respective parties to the action. "When added to the state of the pleadings, some of the matters set forth in the affidavits are distinctly worthy of note. It appears from the affidavits offered upon the part of respondents that the entry of the latter upon the right of way was made by means of a large body of men, equipped with heavy road-building machinery, including a steam shovel; that the entry was made eight weeks before any notice or protest to respondents from appellant and that during that time respondents openly and notoriously proceeded with construction work on the proposed state highway, with the expenditure thereon of considerable sums of money; that since 1916, or for a period of more than five years, the county of Los Angeles had, without protest

Upon the facts thus averred in the pleadings and sworn to in the affidavits, respondents make the following points, omitting two later to be mentioned: 1. “A temporary injunction will never be granted to disturb and interfere with a public road which has already been completed before the injunction was asked.” This point is based upon the fact that a highway has been maintained practically along the three rights of way since 1905 and has been used uninterruptedly by the general public since that year. 2. “An injunction will never be granted against the continuance of a public road, where there is proof that for more than five

We shall make no attempt to pass upon any of these six points. We state them for the purpose of showing the nature of the -controversy present in the litigation and as a preface to the brief consideration of the two remaining questions presented by respondents and upon which we shall make disposition of the appeal.

[1] It is-well settled that a preliminary injunction will not issue in a doubtful ease. “The rule has been frequently laid down broadly that a preliminary injunction will not issue where the right which the complainant seeks to have protected is in doubt, where the right to the relief asked is doubtful, or except in a clear ease of right” (32 C. J. 36). This rule is well recognized in this state. (See San Antonio Water Co. v. Bodenhamer, 133 Cal. 248 [ 65 Pac. 471 ] ; Willis v. Lauridson, 161 Cal. 106 [ 118 Pac. 530 ].) Upon a consideration of all the matters of fact and of law which we have stated above it appears to us that the trial court was amply justified in refusing the preliminary injunction on the ground that it is doubtful what the outcome may be upon a final hearing of the cause.

[2] It is also a settled proposition of law that a preliminary injunction may not be had as a matter of right, but that the question whether such an injunction shall be granted or refused rests in the sound discretion of the court (Flood v. Goldstein Co., 158 Cal. 247 [ 110 Pac. 916 ] ; Lagunitas Water Co. v. Marin County Water Co., 163 Cal. 332 [ 125 Pac. 351 ]). In the present instance we are far from

Order affirmed.

Finlayson, P. J., and Craig, J., concurred.