Coker v. Simpson

Burnett, delivered the opinion of the Court—Murray, C. J., concurring. The decision of this case must be made upon the complaint, the answer, and the judgment of the District Court, as no point is made requiring the transcript to contain the evidence. The plaintiffs were the owners of a ditch leading from Shady Creek, and, after the construction of their ditch, the defendants constructed a ditch above that of plaintiffs, and diverted the waters of the stream. The complaint, in the stating and charging portion of it, simply alleges the facts sufficient to constitute a good cause of action for damages, for the diversion, and then prays judgment for damages, and a perpetual injunction. A verdict was found for plaintiffs, and judgment given for damages, and perpetual injunction, and defendants appealed. The only grounds of error assigned are: First, that the complaint contained no sufficient allegations to sustain the injunction, being only a case for damages; Second, that the injunction granted went beyond the prayer of the complaint, and the justice of the case. The complaint seems insufficient to sustain that part of the judgment of the Court granting the injunction. It is simply alleged, in substance, that defendants, between certain specified times, diverted the waters of the stream, to the plaintiffs’ dam [342] age, in a sum stated. There is no allegation that the injury was continuing, or threatened to he continued, or likely to be continued. The circumstances stated are sufficient for a recovery of damages, hut no equitable facts are alleged to sustain the injunction. The writ of injunction, though remedial, must he based upon equitable circumstances. From all that appears in the complaint, the injury was only temporary, and not likely to continue. For these reasons, I think that part of the judgment of the Court below, granting a perpetual injunction, should be reversed. It is not necessary to examine the other ground of error assigned.