Adams Co. v. Buchanan

WHITING, J. Appeal from circuit court of Butte county. Plaintiff was the owner of a substantial brick building of the approximate value of $12,000, containing a wholesale stock of merchandise of the approximate value of $40,000. Defendant-. [551] intending to engage in the ¡business of storing and vending gasoline and kerosene, began the erection of a concrete ¡building on a lot adjacent to' that occupied by plaintiff and about 15 feet from plaintiff’s building; and erected five cement piers, seven feet high and of sufficient length .to support three steel tanks of a capacity of. 20,000 gallons each, which were to be used for the storing of gasoline and kerosene. In the construction of the foundation for said building and the erection of said piers, defendants had expended approximately $2,000 at the time this action was begun, wherein plaintiff seeks to enjoin defendants from completing their proposed structures and from engaging in their proposed enterprise in such close promimity to plaintiff’s property; the alleged ground for such relief being that the storing and handling of such oils were hazardous to plaintiff’s property and would increase the rate of insurance on same. Upon an order to show cause and after a most exhaustive hearing, the tidal court entered -an order restraining defendants “from constructing the said plant or any portion thereof and from operating the same or any portion thereof” during the pendency of this action. From such order defendants have appealed to this court. [1] It is perfectly apparent that there existed no ground whatsoever justifying the court in restraining defendants from completing the . proposed structures. There was no claim that they would be a nuisance or would, in any manner, be a menace or source of damage to plaintiff. The only relief, pendente lite or ultimate, to which plaintiff could possibly be entitled was the enjoining of defendants from conducting the proposed business — it was that which plaintiff alleged would inflict irreparable injury upon it. The injunction, therefore, should, in any 'case, have been directed only against the operating of the business, and the trial court should have allowed defendants to elect whether or not to continue the erection of their plant during pendency of this action. To thus stay the erection of the plant' may have caused defendants great damage. [2-5] Was plaintiff entitled to an order restraining the operation of the proposed plant? As above noted, the prnyer for relief was based upon two grounds — increased cost of insurance and impairment of the safety of plaintiff’s building and [552] stock of goods. An injunction may be sought as a part or all of the ultimate relief to which plaintiff claims to be entitled (subdivision i, § 2424, Rev. Code 1919’) ; or it may be sought, during litigation not as the real relief prayed for, but as a provisional remedy to make possible the ultimate relief to which the plaintiff may claim to- be entitled (subdivisions 2 and 3, § 2424, Rev. Code 1919). It is apparent that this injunction is sought under subdivision 1 of said section 2424. On an application for an injunction under subdivisions 2 and 3, the court, in granting in junctional relief, should in no manner anticipate or predetermine the merits of the main cause of action (Helm v. Gilroy, 20 Or. 517, 26 Pac. 851; 1 Joyce on Injunctions, 195) ; and yet even where a pendente lite injunction is sought as a provisional remedy only, it should not be granted “where, upon the hearing of the motion, it is not apparent that the ultimate determination of the suit in favor of the complainants is reasonably probable” (Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17670; 1 Joyce on Injunctions, 194). But where, as' in this case, the sole relief sought in the action is in junctional and the pendente lite injunction asked for is, as it must be, based upon the very grounds upon which the permanent injunction is sought, the decision, upon the pendente lite injunction, while not final and res judicata as to the ultimate rights of the parties, should usually be a virtual determination as to what the final judgment would be under the same facts. As stated in 14 R. C. L. 312: “As a preliminary injunction is in its operation somewhat like judgment and execution before trial, it is to be restarted to only when there is a pressing necessity to avoid injurious consequences, which cannot be repaired under' any standard of compensation. The right to such an injunction does not arise merely because the plaintiff asks for that relief and nothing' more, nor' because he alleges that without it he would' suffer irreparable injury. This results from the truism that all judicial action is taken on the conviction of the judge as to- the rights-of the-, parties, and not on the opinion of the parties themselves as to their rights. Hence there ai*e two essential conditions to the granting of even temporary injunctions: First, the complaint must allege facts which appear to be sufficient to con [553] stitute a cause o-f action for injunction; and, second, on the entire showing from both sides it must appear, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation.” [6] And as stated in 22 Cyc. 758: “It is not sufficient ground for an injunction * * * that injury may'- possibly result from the acts sought to be prevented. There must be at least a reasonable probability that the injury will be done if no injunction is granted, and not a mere fear or apprehension.” [7] Keeping in view the above rules, let us consider the record before us. Our statute contemplates that pendente lite injunctions will be determined upon affidavits; and usually there is not a very full hearing on the issues of fact upon which the right to relief d'epends. But in this case it was quite different, as there was a very full showing on both sides. Not only were there 13 affidavits before the court, but 12 witnesses were sworn and testified. Plaintiff absolutely failed to sho-W, that, by the erection and operation of the proposed plant, hi sinsurance premiums would be ncreased one cent more than by the erection and operation of any other mercantile plant. The testimony of its own witness, an insurance agent, showed that, even the rate for “explosive insurance” would not be greater because of the fact that plaintiff’s property' was situated close to a gasoline storage plant. In fact the. evidence was overwhelming in support of defendants’ claim that the operation of their proposed plant would not constitute a menace to plaintiff’s property or materially increase the fire or explosive hazard thereof. The evidence shows that plaintiff, before it -entered a word of protest, stood by' and saw some $2,000 expended in the erection of said plant, knowing fully the use to which the said plant was to be put. The evidence shows that the only complaint then entered was directed against the location of the power plant to be used in operating the pump in defendants’ plant, and that defendants offered to place said power plant further away from plaintiff’s premises, if plaintiff desired them to do so.- The evidence showed that the power plant was a proper one and its operation attended with [554] no danger of accid'ent unless something entirely out of the usual should happen to it. The evidence fully established the fact that, while there might be a possibility of fire or explosion because of the operation of defendants’ plant, such possibility is remote; that there is no probability that “injury -will be done if no injunction is granted”; that all there is upon which,' to base an injunction is the “mere fear or apprehension of plaintiff.” The court erred in granting the injunction. But, if the facts as disclosed upon the final trial shall show plaintiff to be entitled to the relief sought, the denial of the injunction pendente lite -will in no manner stand'in the way of plaintiff’s final recovery. The order appealed from is reversed.