Rohrer v. Babcock

Britt, C. The court below denied defendant’s motion—heard on the plaintiff’s complaint alone—to dissolve a preliminary injunction restraining defendant, during the pendency of the action, from “ removing or molesting” certain fifty tons of hay, which same was grown and stacked, it seems, on land forming part of the estate of plaintiff’s testator, and the question is whether sufficient facts are stated in the complaint to justify the issuance of the writ. It is there alleged, among other matters, that plaintiff, as executrix, is the-owner of the hay, and that defendant, without right, has commenced hauling the same from the stacks and feeding it to cattle and other livestock, and threatens to [125] remove the whole of it and feed it to such stock, and will do so unless enjoined; that he is without means to respond in damages, and, if he is permitted to remove the hay, plaintiff will be irreparably injured. Defendant argues that plaintiff has ample remedy in the ordinary course of law, and therefore that no injunction lies. The complaint is meager in its detail of facts tending to show that plaintiff is remediless unless the writ of injunction is interposed in her behalf; but so much latitude is permitted to the discretion of the judge in allowing and dissolving interlocutory injunctions, that the order made in this instance ought not to be reversed unless the complaint is barren of equity'to such degree that this court can say there was an abuse of that discretion. It is no doubt true that in general an injunction does not lie to prevent trespass upon either real or personal property, and this for the reason that, commonly, purely legal remedies suffice for the plaintiff's redress. (See Mechanics’ Foundry v. Ryall, 75 Cal. 601.) The reason of the rule ceasing, the rule ought to cease. Here replevin is the remedy which appellant most insists was appropriate to the plaintiff's case; but she avers, and the averment must for present purposes be taken as true, that defendant is feeding the hay to livestock, and will continue so to do unless restrained; she could maintain no action in the nature of replevin for hay not in defendant’s possession, and obviously the several portions of it hauled away by him might and probably would be consumed before successive writs for its redelivery could be obtained and served; and he being insolvent, judgment for its value would be of no avail. The facts are fairly within the provision of section 526 of the Code of Civil Procedure, permitting an injunction when it appears during the litigation that defendant is doing, or threatens to do, some act respecting, the subject of the action, in violation of the plaintiff’s rights and tending to render the judgment ineffectual. The following cases, among others, tend more or less directly to support our conclusion: Hicks v. Compton, 18 [126] Cal. 206; West v. Smith, 52 Cal. 322; McDonald v. Bayne, 58 Hun, 611; 12 N. Y. Supp. 772; Wilson v. Hill, 46 N. J. Eq. 367. The order appealed from should be affirmed. Belcher, C., and Searls, C.,, concurred. For the reasons given in the foregoing opinion the order appealed from is affirmed. Harrison, J., Van Fleet, J., G-aroutte, J.