Castelbury v. Harte

SULLIVAN, J. This is an action to quiet title to a certain tract of land. The complaint is in the usual form of actions of this character. The plaintiff alleges possession and title in himself, which is denied in the answer of the defendant, and the defendant by cross-complaint alleges possession and title in himself. The action was commenced on June 13, 1907. It appears from the record that sometime in July, after the action was commenced, the plaintiff went upon the land and commenced cutting sawlogs, and it appears from the record that he cut from ten to twenty thousand feet, board measure, and removed a part of the logs from the land in controversy and placed them in a small stream, a tributary of the St. Mary’s river; that the defendant thereupon made application to the court for an injunction pendente lite, which, after a hearing, was granted. This appeal is from the order granting such injunction. The appellant assigns as error the granting of, and the continuing in force of, said injunction during the pendency of this suit. It is first contended that the affidavit on which the restraining order was granted is not sufficient, and does not state facts sufficient to warrant the granting of an injunction. While some of the facts are stated on information and belief, those facts are partially admitted by the counter-affidavits of appellant. On the papers presented on the application for the injunction, it appears that each of the parties is claiming the ownership, title and possession and right to the possession of the land in question. In the affidavit of respondent, it is alleged that the respondent, sometime during the fall of 1907, commenced cutting logs upon the land in controversy; that he had already cut about 200 logs, amounting to about 20,000 feet, board measure, of the value of about $100; also that a few of those logs had been removed from the land in controversy and placed in a small stream called Emerald creek, which is a tributary of the St. Mary’s river; and that appellant has threatened and is about to cut other logs and timbers from said land in violation of the defend [402] ant’s rights, which acts, if allowed to be done, will tend to render any judgment recovered herein ineffectual. In the counter-affidavit filed by appellant, he admits that he had cut about 10,000 feet of logs, board measure, and protests that he does not intend to cut any more logs. The application for an injunction was made upon that affidavit, the complaint, answer and cross-complaint and the affidavit of the appellant, and we think the showing sufficient to warrant the granting of an injunction pendente lite in order to preserve the statu quo of the premises until the final determination of the suit. It is contended by counsel for appellant that the affidavit of the appellant used on said hearing contradicts the alleged threatened acts contained in the affidavit made in behalf of the respondent. That contention is correct, so far as the intention of the appellant to continue the cutting of timber from said land is concerned. He states in said affidavit that he does not intend to cut any more timber on said land or remove any therefrom. But it might occur to him to change his intention and proceed and cut more timber and remove it from said land. There is nothing in the record that would restrain him from changing his mind and proceeding to remove the timber, except the writ of injunction issued by the court. If he has no intention of cutting and removing other timber from said land, the restraining order issued will in no manner interfere with him, and if it should occur to him to change his intention, the restraining order in all probability would prevent him from carrying out his changed intention. Where the title and possession of real estate is in litigation and each of the litigants claims the same, upon a proper showing, an injunction pendente lite will be granted to preserve the land in statu quo pending the litigation. Under subdiv. 2 of see. 4288, Rev. Stat., it is provided that an injunction may be granted when it appears by the complaint or affidavit or cross-complaint or affidavit of defendant that the commission or continuance of some act during the litigation would produce waste to the land in controversy. We [403] think it sufficiently appears from the papers which were considered on the motion for an injunction that the cutting of the timber on the land in dispute would produce waste. The leading case in this state on the question under consideration is that of Staples v. Rossi, 7 Ida. 618, 65 Pac. 67, which is similar to the case at bar. In that opinion the court said: “The allegations of the complaint, if sustained at the trial, will establish the ownership of the plaintiffs in the mining ground described, and to the timber cut therefrom by appellants, and which they have been temporarily restrained from removing, and the plaintiffs should be protected until the question of ownership is determined. If plaintiffs succeed in establishing their title, they are entitled to protection to their property in specie. Without the aid of injunction, I know of no other remedy which will fully protect them in their rights.” This court has taken the same position in the case of Safford v. Flemming, 13 Ida. 271, 89 Pac. 827. The granting of an injunction pendente lite rests in the sound discretion of the court. In High on Injunctions, sec. 11, the author says: “The right to a preliminary injunction is not ex debito justitiae, but the application is addressed to the sound discretion of the court, to be guided according to the circumstances of the particular case.” The action of the trial court in granting or refusing to grant an injunction pendente lite will not be reversed on appeal unless it clearly appears that there was an abuse of discretion. We conclude that the application for the temporary injunction was sufficient, and that the court did not abuse its discretion in granting the writ. The order of the court is sustained with costs in favor of the respondent. Stewart, J., concurs.