Opinion
Civ. No. 555.
January 27, 1909.
APPEAL from an order of the Superior Court of Fresno County, dissolving a preliminary injunction. H. Z. Austin, Judge.
The facts are stated in the opinion of the court.
H. Scott Jacobs, for Appellants.
Robt. W. Miller, for Respondents.
The appeal is from an order dissolving a preliminary injunction that was issued on the filing of the complaint.
The action was brought to restrain defendants from interfering in any manner with plaintiffs in the use of a certain water ditch extending across the lands of defendant Sheldon J. Raney, plaintiffs claiming an easement therein, and also to quiet "plaintiffs' title in and to said ditch and their right to run water therein over, across and through the lands of said defendant, Sheldon J. Raney."
The alleged wrong of which complaint is made, the destruction of the ditch, had been committed more than a year prior to the issuance and service of the writ. Hence, the writ was improperly issued in the first instance, and for that reason the court was justified in dissolving it.
"The office of a writ of injunction, as its name imports, is peculiarly a preventive and not a remedial one; it is to restrain the wrongdoer, not to punish him after the wrong has been done or to compel him to undo it." ( Stewart v. Superior Court, 100 Cal. 546, [35 P. 156, 563].) "Besides, it has been decided by the court that a preliminary injunction 'will not be retained where it appears (by the answer, uncontradicted by affidavit) that the acts, the performance of which is sought to be restrained, had been performed before the order for the injunction was made or served.' ( Delger v. Johnson, 44 Cal. 182. ) A fortiori, where the fact of performance appears in the complaint, as in this case." ( Gardner v. Strover, 81 Cal. 151, [22 P. 483].)
But if it be admitted that sufficient facts were alleged to justify the court in the issuance of the injunction to restrain defendants from interfering with any effort of plaintiffs to restore the ditch, still we must hold that the court did not abuse its discretion in the order of dissolution. The material allegations of the complaint were all denied by the answer, and the latter was supported by certain affidavits set out in the transcript. It is true that counter-affidavits were filed by plaintiffs, but at most, there was simply a conflict in the evidence, and it is impossible for us to say that the court was not justified in acting favorably upon the showing made by the defendants. In Marks v. Weinstock, Lubin Co., 121 Cal. 55, [53 P. 362], the supreme court said: "It is a well-settled rule that the dissolution or continuance of a preliminary injunction is a matter largely within the discretion of the trial court, and its action will not be disturbed on appeal, unless it appears from the record that its discretion has been abused."
We can see no merit in the appeal, and the order is, therefore, affirmed.
Chipman, P. J., and Hart, J., concurred.