Opinion
No. 3907.
June 29, 1939. Rehearing Denied July 17, 1939.
Appeal from District Court, Reeves County; J. A. Drane, Judge.
Injunctional proceedings by Red Bluff Water Power Control District against Kyle Biggs. From an interlocutory order granting an injunction, the defendant appeals.
Affirmed.
This is an injunction suit brought by the Red Bluff Water Power Control District against Kyle Biggs in which the defendant was temporarily enjoined from entering upon and using the property of the plaintiff district without its consent or permission. From such interlocutory order this appeal is prosecuted. The defendant answered, admitting certain allegations in the petition and specifically denying others. The temporary injunction was granted after hearing evidence, but the record here is without a statement of facts. In this situation it must be here assumed that all contested controlling issues of fact were found by the trial Court in favor of the plaintiff.
The effect of the injunction is to simply enjoin the defendant from trespassing upon and using the property of the District without the plaintiff's consent or permission. The question for decision is whether the plaintiff is entitled to such relief.
It is unnecessary to state the allegations of the petition at length or in detail. It is necessary only to briefly indicate the material facts so shown.
The District is a water power control district and water improvement district organized under the laws of this State. It has constructed a dam and reservoir across the Pecos River in Reeves and Loving Counties, Texas, impounding the flood waters of said River for irrigation and hydroelectric power purposes, the waters thus impounded creating an artificial lake above such dam. The plaintiff owns and possesses the lands adjacent to the River bed thus submerged and the lands surrounding the water edge of the lake. On July 19, 1938, plaintiff's Board of Directors adopted and promulgated reasonable rules and regulations governing residence, boating, camping, recreational and business privileges upon the reservoir and surrounding lands in accordance with the provisions of Chapter 293, Acts Forty-fourth Legislature, Regular Session, page 689 (Article 7652a, Vernon's Ann.Civ.St.) and notice thereof was given by publication.
On May 3, 1939, defendant, without plaintiff's consent, entered upon plaintiff's lands and premises and upon request refused to pay the customary charges made by plaintiff for recreational purposes, and told plaintiff's agent he had no intention of recognizing plaintiff's property rights or obtaining plaintiff's consent, and threatened to continue and will continue to go upon and use plaintiff's premises.
General allegations are made in the petition of irreparable damages and inadequacy of any remedy at law.
A. T. Folsom, of Wink, for appellant.
James H. Starley, of Monahans, and Hill D. Hudson, of Pecos, for appellee.
Appellant asserts the plaintiff's petition is insufficient to entitle it to the injunctive relief sought because the allegations of irreparable damage and inadequacy of any legal remedy are general and do not allege any specific facts supporting such general allegations. That the petition is also insufficient because it does not negative the existence of facts which would defeat plaintiff's right to the injunctive relief sought.
The authorities cited by appellant in this connection need not be discussed further than to say they are cases where injunctive relief was invoked upon equitable grounds. Subsection 4 of the Acts of the Forty-fourth Legislature (Vernon's Ann.Civ.St. art. 7652a, subsec. 4), above referred to, confers upon water improvement districts the remedy of injunction to enforce the provisions of the Act and the lawful and reasonable rules and regulations provided for in the Act.
It is thus apparent the injunctive relief sought by the appellee is authorized by statute and does not depend upon equitable principles, and the rules of pleading applying in injunction suits based upon equitable considerations are inapplicable. Under the statute and the facts alleged in the petition, the Court properly granted the injunctive relief which it ordered. Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S.W. 1101.
It is also assigned as error the petition is insufficient because it shows the suit is for the purpose of exacting illegal tolls and fees. We do not so construe the petition. The object of the suit is to prevent appellant from trespassing upon and using plaintiff's property without its consent.
Appellant's next and last assignment asserts the Court erred in granting the temporary injunction because the facts alleged show only "a nominal or technical trespass, so trivial that it will not be considered by a Court of equity." As heretofore stated, the plaintiff's right to injunctive relief does not depend upon equitable considerations but upon the said Act of the Forty-fourth Legislature in subsection 4 thereof.
The petition alleges a previous trespass by appellant upon plaintiff's property and that appellant threatens to continue and will continue to go upon and use plaintiff's premises. Under the statute plaintiff is entitled to the injunctive relief granted by the Court.
Upon the record here presented the order appealed from should be affirmed. It is so ordered.