Phenix v. Frampton

By the Court, Talbot, C. J.: This is an appeal from an order refusing to dissolve a temporary injunction. In the complaint jt is alleged that the plaintiffs are the' owners and in possession of Lots 1 and 2 in Block 12 in Phenix’s North Addition to the Town of Goldfield; that- the same are a part of the Montezuma mining claim; that the defendant, disregarding the possession of the plaintiffs, on or about the 1st day of October, 1906, entered upon the premises and commenced to dig up and sink and excavate a cellar and to build and construct, and at the time of filing the complaint was building and constructing, a large and commodious dwelling house thereon of a permanent character, with the intention to occupy and possess the same without the consent of -the plaintiffs, which improvements when completed would become in time an easement and affect the title and right of possession of the plaintiffs to the premises, and be the foundation of an adverse claim;' that defendant threatens to continue to dig up and disturb and excavate the soil, and to continue the erection of the building, and to dispossess plaintiffs and set up an adverse title. Following the demand in the complaint, and upon the giving of an undertaking in the sum of $5,000, the district court made a temporary order restraining defendant from entering upon — 314 — the premises, and from digging or excavating on the land, and from building or constructing any dwelling house or other structure or fixture thereon, and from committing any act of trespass. Defendant filed a verified answer denying that the plaintiffs were the owners or entitled to possession of the land, and alleging that the defendant was the owner and in the actual, undisturbed, peaceful possession of these lots under sections 2387 and 2389, inclusive, of the Revised Statutes of the United States (U. S. Comp. Stats. 1901, pp. 1457, 1458), and by reason of an application for a town site upon the public domain made by the defendant and numerous other persons through the district judge as trustee, which application had been entertained by the Commissioner of the General Land Office. It is also averred in the answer that the defendant entered upon and took possession of the premises in 1905, and erected thereon a store building and dwelling house of the value of about $1,000; that about the 1st day of October, 1906, he moved this building back to the alley line; and that as averred in the complaint he commenced the erection upon the lot in dispute of a large and commodious dwelling house to consist of two stories and basement, the basement constructed with stone walls in size 20 by 30 feet, the superstructure two stories high, 30 by 80 feet, lathed and plastered, to cost $6,000, and that about $4,000 had been expended thereon at the time of filing the complaint and issuance of the injunction. It is admitted in the answer that these improvements are of a permanent character. The defendant moved to dissolve the preliminary restraining order upon affidavits following partly the denials and allegations of the answer and relating to the condition and value of the improvements, to which counter-affidavits were filed, and the appeal is from the order denying this motion. It will be seen that the question involved is whether the court may properly restrain the completion of a building of a substantial, permanent character pending the final determination of the action, when the right and title to the land upon which it stands are clearly in issue. On behalf of the appellant it is urged that the plaintiffs are out of possession, that if they are entitled to any relief they have a full and — 315 — adequate remedy at law, that the injury to the property is not irreparable, that all the material averments contained in the complaint are fully denied by the answer, and that from the facts in the record and those of which the court below took judicial notice the claim .of the defendant is at least presumptively valid, and that for any one of these reasons the injunction should have been dissolved. The claim that respondents are out of possession is contrary to the allegations of the complaint, and cannot be assumed by the court until this question — the same as others in issue — has been determined upon the trial. (Rose v. Richmond M. Co., 17 Nev. 56, 27 Pac. 1105.) As to the contention that appellants were entitled to have the restraining order dissolved on the denials in the answer, the facts warranting the injunction, if one is proper to restrain the erection of permanent buildings, are shown and ■admitted by the pleadings. That the opposing parties are claiming the right and‘title to, and possession of, the land is clear. Both the complaint and answer allege, and neither denies,‘that this extensive building is under construction, and that, unless restrained, the defendant will bring it to completion. It may be said then that all the facts essential to the granting of the temporary injunction are undisputed. However squarely the issue may be drawn with regard to the ownership and possession, and regardless of whether the affidavits presented on the motion to dissolve be ignored, the uneontroverted showing that the title and right of possession are contested, and that unless restrained the defendant will erect a building of a substantial, permanent character on these lots, is sufficient to support an order for the preservation of the property and enjoining the erection of the building until the title and right to the land can be adjudicated. This may enable the prevailing party, whoever he may be, to finally come into his own without further change or alteration. If facts are alleged which, if established on the trial, would warrant a permanent injunction, it would seem that generally the conditions which would make the final injunction effective ought to be maintained until trial can be had. It is a well-recognized rule that courts of equity will pre — 316 — serve the status of the property in dispute pending litigation, and the authorities generally hold that equity will restrain extensive excavations and the erection of walls and permanent buildings. The legal principle involved is well expressed by the following extracts from decisions in other jurisdictions: Southmayd v. McLaughlin, 24 N. J. Eq. 181: "The defendant has not only pulled down the fence, but has proceeded to excavate the land, and drive piles there for his foundation. * * * It is within the province of this court to arrest his progress in the trespass, at least until he shall have established his right at law. (Varick v. Corporation of New York, 7 Johns. Ch. 55; Jerome v. Ross, 7 Johns. Ch. 315; Barron v. Van Sittart, 1 Eng. E. & C. Cases, 602; High on Injunctions, 477, 483.) * * * In Barron v. Van Sittart the court restrained the defendants from committing .a trespass, though it was merely the leveling of farm land for the laying of a railway track, or, as the lord chancellor expressed it, 'making level ground of that of'which there is at present no portion level.’ In the present case the trespass goes to the destruction of the inheritance. The defendant is no,t only proceeding to dig away the soil of the land in possession of the complainants, but is about to take exclusive possession of it with a permanent structure.” Chicago, Burlington and Quincy Ry. Co. v. Porter Bros. & Hackworth, 72 Iowa, 426, 34 N. W. 286: "It is further claimed that injunction is not the proper remedy; that the action should have been at law for damages. We do not think this position is well taken. There can be no doubt that equity will enjoin encroachments upon land by making excavations, erecting permanent buildings, and the like.” Long v. Ragan, 94 Md. 462, 51 Atl. 181: "It is clear, we think, that a trespass of this character works a destruction of the property as it had been held and enjoyed by the owner and that full and adequate relief could not be had at law. In Herr v. Bierbower, 3 Md. Ch. 458, the chancellor said: 'Taking possession of a portion of their lot and digging upon it a foundation for a building and erecting a building upon that foundation, thereby reducing the front of the lot — 317 — so as to prevent their building upon it themselves, in the mode which would be most advantageous, surely goes to the destruction, pro tanto, of the estate, and injures the just enjoyment of the property in the future.’ ” In the latter ease it was held that an injunction will not be granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff’s estate, but is susceptible of perfect pecuniary - compensation, in the ordinary course of law; that if the trespass goes to the destruction of the inheritance, or the mischief be not susceptible of perfect and adequate pecuniary compensation at law, or if the acts done or threatened to the property be ruinous, or irreparable, or impair its just enjoyment in future, the courts of equity will, without hesitation, interfere by injunction. In Church v. Joint School District, 55 Wis. 399, 13 N. W. 272, the school board were enjoined from erecting a school house. The court said: "The principle of these cases is 'that an attempt to enter upon and take permanent possession of land for public use without the assent of the owner, and without the damages having been ascertained and paid or tendered, is, or would be, if consummated, in the nature of an irreparable injury, for the prevention of which the writ of injunction constitutes the proper remedy.’ This principle was first applied in a case closely analogous to this, in which a town threatened to take land for the purposes of a highway. (Norton v. Peck, 3 Wis. 714.) Then it was applied by analogy to the threatened taking of land by a railroad company for the use of its road in Shepardson v. M. & B. (Railroad Co., 6 Wis. 605, and again applied in Powers v. Bears, 12 Wis. 214, 78 Am. Dec. 733, and lastly in Diederichs v. N. W. U. Railway Co., 33 Wis. 219.” In Clayton v. Shoemaker, 67 Md. 216, 9 Atl. 635, it was held that there should be a temporary injunction prohibiting the defendant from proceeding with the erection of his building until the title had been decided in a court of law. In Newell v. Sass, 142 Ill. 104, 31 N. E. 176, an injunction was granted to prevent the completion of a threatened injury which had been commenced by excavating and starting to — 318 — build a fence. At section 707, High on Injunctions, 3d ed., it is said: " Where the trespass complained of consists in the erection of buildings upon complainant’s land, a distinction is taken between the buildings when in an incomplete and when in a finished state. And while the jurisdiction is freely-exercised before the completion of the structures, yet if they have been completed the relief will generally be withheld, and the person aggrieved will be left to his remedy by ejectment.” (Sherman v. Clark, 4 Ñev. 139, 97 Am. Dec. 516.) Other citations maybe found in 22 Cye.,which sustain the statement in the text at page 760, that if the act sought to be enjoined and the injury resulting are continuing in their nature, or if the injurious act has not been completed, an injunction is proper, but not so against an ordinary or naked trespass (page 827), and at page 834: "Encroachment on the land of another by erecting permanent buildings or walls is such a destruction of the inheritance as may be enjoined.” Decisions also applicable are: Miller v. Lynch, 149 Pa. 460, 20 Atl. 80; Kaiser v. Dalto, 140 Cal. 167, 73 Pac. 828; More v. Massini, 32 Cal. 590; Baron v. Korn, 127 N. Y. 220, 27 N. E. 804; Switzer v. McCulloch, 76 Va. 777. In line with other cases holding that mere trespass and occupation without acts injurious to the inheritance will not be temporarily restrained, it was held in White v. Booth, 7 Vt. 130, that the use of a church already completed would not be enjoined pending trial of title to the land. (Amelung v. Seekamp, 9 Gill & J. 468.) In Waddingham v. Robledo, 28 Pac. 663, 6 N. M. 347, the defendants were allowed to retain the possession and use of ditches and improvements, but restrained from making others pendente lite. In view of the denials and allegations of the answer, until it is ascertained upon the trial whether the defendant is the owner or entitled to the possession of the premises, it is premature to assume that his entry would be a trespass. It would be otherwise if the answer admitted that plaintiffs were the owners and entitled to the possession of the land. The order properly enjoined the erection of the building, but it is too broad in restraining defendant from entering the premises in dispute. The court may properly prohibit either — 319 — or both parties from erecting permanent buildings, or committing waste, or doing acts which may cause irreparable injury, but under the facts as shown there is no more reason for enjoining one of the parties from entering the premises than for restraining all. The defendant likewise is entitled to have the property protected until the determination of the suit, and may wish to enter the premises for the preservation of the structure, which he has partly erected at the alleged expense of $4,000, and in the protection of which he may be more interested than the respondents who object to its completion. In Silver Peak Mines v. Hanchett, 93 Fed. 78, with citation of authorities, it was said that the rule is well settled that an injunction prohibiting any interference with the status of property pending litigation does not prevent any party having an interest from doing whatever is reasonably necessary for its preservation. We realize that the temporary restraining order prohibiting the defendant from completing the building until trial can be had and the title and right of possession to the land determined may result in considerable damage to the defendant if he succeeds in establishing his claim to the lots, but, as no suggestion is made to the contrary, we assume that the $5,000 bond given is ample for his protection in this regard. The Nevada cases upon which appellant relies did not relate to town lots or buildings, and may be distinguished in other ways from the one now before the court. The same reasons do not exist for enjoining the construction of a ditch across barren and rocky land in the country not shown to be valuable for building or agricultural purposes, and when the ditch had been partly built by consent, and the damage to the land was only five dollars, as in Hoye v. Sweetman, 19 Nev. 377, or steps had been taken to condemn a right of way for a ditch for supplying water to the inhabitants of a city, which would only nominally injure land of little value, as in Thorn v. Sweeney, 12 Nev. 254; 22 Cyc. p. 829; Waldron v. Marsh, 5 Cal. 119; Crescent M. Co. v. Silver King M. Co., 17 Utah, 444, 54 Pac. 244, 70 Am. St. Rep. 810. The district court is' directed to so modify the temporary injunction that it will not prohibit the defendant from enter — 320 — ing, but will restrain him from digging, excavating, building, or constructing any dwelling house or other structure or fixture, or committing any injury, on the premises described in the complaint. The costs of this appeal are to abide the final result of the action.