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Hatch v. Raney

9 Cal. App. 716 Court Third Appellate District. Decision date 1909-01-27 Docket Civ. No. 555 English

Delivered by BURNETT, J.

Contents

Majority

p. 716
[Civ. No. 555.
Third Appellate District.
January 27, 1909.]
JULIA HATCH et al., Appellants, v. SHELDON J. RANEY et al., Respondents.

Headnote

Injunction—Improper Preliminary Writ—Restraint of Consummated Trespass—Destruction of Ditch Before Suit.—When a complaint for an injunction to restrain the defendant from interfering in any manner with plaintiffs’ water ditch extending aerosá defendant’s land shows on its face that the ditch was destroyed more than one year prior to the issuance of the preliminary writ, the writ was improperly issued, and it was properly dissolved.
Id.—Office of Injunction Preventive and not Remedial.—The office of the writ of injunction issued pending suit is preventive and not remedial, to restrain the wrongdoer, and not to punish him after the wrong has been done, or to compel him to undo it.
Id,—Efforts to Restore Ditch—Answer—Affidavits and Counter-affidavits—Discretion not Abused.—If it be admitted that the complaint shows interference with plaintiffs’ efforts to restore the ditch, yet when the answer denies all of the material allegations of the complaint, and the complaint is supported by affidavits, and the answer by counter-affidavits, the question of the dissolution of the temporary injunction was addressed to the discretion of the court, and if its discretion does not appear to have been abused, its action in dissolving the injunction will not be disturbed upon appeal.
APPEAL from an order of the Superior Court of Fresno County, dissolving' a preliminary injunction. H. Z. Austin, Judge. > '
The facts are stated in the opinion of the court.
H. Scott Jacobs, for Appellants.
Robt. W. Miller, for Respondents.

The appeal is from an order dissolving a preliminary injunction that was issued on the filing of the complaint.

The action was brought to restrain defendants from interfering in any manner with plaintiffs in the use of a certain water ditch extending across the lands of defendant Sheldon J. Raney, plaintiffs claiming an easement therein, and also to

p. 717
quiet “plaintiffs’ title in and to said ditch and their right to run water therein over, across and through the lands of said defendant, Sheldon J. Raney.”

The alleged wrong of which complaint is made, the destruction of the ditch, had been committed more than a year prior to the issuance and service of the writ. Hence, the writ was improperly issued in the first instance, and for that reason the court was justified in dissolving it.

“The office of a writ of injunction, as its name imports, is peculiarly a preventive and not a remedial one; it is to restrain the wrongdoer, not to punish him after the wrong has been done or to compel him to undo it.” (Stewart v. Superior Court, 100 Cal. 546 , [ 35 Pac. 156 , 563].) “Besides, it has been decided by the court that a preliminary injunction ‘will not be retained where it appears (by the answer, uncontradicted by affidavit) that the acts, the performance of which is sought to be restrained, had been performed before the order for the injunction was made or served. ’ (Delger v. Johnson, 44 Cal. 182 .) A fortiori, where the fact of performance appears in the complaint, as in this case.” (Gardner v. Strover, 81 Cal. 151 , [ 22 Pac. 483 ].)

But if it be admitted that sufficient facts were alleged to justify the court in the issuance of the injunction to restrain defendants from interfering with any effort of plaintiffs to restore the ditch, still we must hold that the court did not abuse its discretion in the order of dissolution. The materia) allegations of the complaint were all denied by the answer, and the latter was supported by certain affidavits set out in the transcript. It is true that counter-affidavits were filed by plaintiffs, but at most, there was simply a conflict in the evidence, and it is impossible for us to say that the court was not justified in acting favorably upon the showing made by the defendants. In Marks v. Weinstock, Lubin Co., 121 Cal. 55 , [ 53 Pac. 362 ], the supreme court said: “It is a well-settled rule that the dissolution or continuance of a preliminary injunction is a matter largely within the discretion of the trial court, and its action will not be disturbed on appeal, unless it appears from the record that its discretion has been abused. ’ ’

We can see no merit in the appeal, and the order is, therefore, affirmed.

Chipman, P. J., and Hart, J., concurred.

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