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Appellants cite many authorities showing the old equitable doctrine and rules of chancery relating to injunctions. The principal authority relied upon by the appellants is the case of Heaney V. Commercial Co. (Mont.) reported in 27 Pac. 379. A careful reading of the decision in that case shows that the Montana court followed the ancient equitable rules relating to injunctions. The opinion nowhere refers to any statute of Montana providing the remedy of injunction. That being true, we are inclined to think that the decision cited has no application to the case at bar; for the case here is governed, to a large extent, at least, by the provisions of section 4288, Rev. St. Idaho. This statute provides a legal remedy for the preservation of certain rights coming within the cases set forth in the statute. In our opinion, the authorities cited by the appellants should not control the decision in this case, for the following reasons: The distinctions between actions at law and equitable actions have been abrogated, to a large extent, in America. This is notably so in the newer states, and especially in this state. In fact, the framers of our constitution evidently intended, in framing section 1 of article 5 of our state constitution, to break down the distinction between these two classes of actions. That section, inter alia, provides, "The distinction between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited." Remedial rights which were formerly exclusively cognizable at equity are to-day largely matters of statutory law, enforceable in actions at law. Thus, it is evident that ofttimes where formerly an appeal to the chancellor was necessary, in order to protect an existing right or to prevent a threatened injury, an appeal to the original law court is now, by virtue of our Codes and statutory provisions, sufficient. The remedy of injunction formerly was a matter of exclusive equity jurisdiction. The writ was granted upon appeal to the conscience of the chancellor. It issued only in those cases where the law provided no remedy. It was a matter within the discretion of the chancellor, not a matter of right, and issued to prevent only those injuries which were irreparable, and for which no adequate remedy at law existed. Under our constitution and our Code, as I understand it, the writ of injunction has become to be largely a matter of right. Section 4288, Rev. St., provides, inter alia, as follows: "An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of either for a limited period or perpetually. (2) When it appears by the complaint, or affidavit, that the commission or continuance of some act during the litigation would produce waste, great or

irreparable injury to the plaintiff. (3) When it appears during the litigation that the defendant is doing or threatens or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual." This section was construed by the supreme court of Idaho territory, in February, 1890, in the case of Gilpin v. Mining Co., reported in 2 Idaho, at page 662, 23 Pac. 547, 23 Pac. 1014. In that case it was held that the removal of ores from a mining claim was waste; that a temporary injunction should issue to prevent the removal of ores from a mining claim which was in litigation, until the title thereto could be determined. The court in that case, speaking through Mr. Justice Berry, said: "To remove that mineral is certainly waste, and waste is one ground for the issuance of this writ. It is also great injury, and that is another ground, whether it be reparable or not. Irreparable injury is still another ground, d'sjoined in the statute from the other grounds. To remove the ore from the mine, and leave but a worthless shell to be contended for, would certainly have a 'tendency to render ineffectual' any judgment which plaintiff might recover." In that case Mr. Chief Justice Beatty, specially concurring, said: "Upon the record we have in this matter, were it a hearing upon the merits, I would hesitate to agree to the reversal; for, from the examinations I have been able to make of the testimony, I think its weight seems to be with the defendant. This, however, is not to settle the title to the ground in controversy, but only to preserve its full value until that title can be settled upon full hearing. Admitting the defendant is right, the inconvenience to it from an injunction will be less than would be the damage to plaintiff should he prove to be right." The modern doctrine of injunctions for temporary purposes is tersely and correctly stated in 16 Am. & Eng. Enc. Law (2d Ed.) p. 345, where it is said: "An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits, and its sole object is to preserve the subject in controversy in its then existing condition, and without determining any question of right, merely to prevent a further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered, until a full and deliberate investigation of the case is afforded to the party. In many cases the court will interfere to preserve the property in statu quo during the pendency of a suit in which the rights to it are to be decided; and that without expressing, and often without having the means of forming, any opinions as to such rights. It is true that the court will not so interfere if it thinks that there is no real question between the parties; but, seeing that there is a substantial ques

tion to be decided, it will preserve the property until such question can be disposed of. In order to support an injunction for such purpose, it is not necessary for the court to decide upon the merits in favor of the plaintiff. The court must satisfy itself, not that the plaintiff has certainly the right, but that he has a fair question to raise as to the existence of such a right. The complainant may be entitled to preliminary injunction in cases where his right to the relief prayed may fail on a hearing on the merits. A preliminary injunction will never be granted unless from the pressure of an urgent necessity. The damage threatened, and which it is legitimate to prevent during the pendency of the suit, must be, in an equitable point of view, of an irreparable character. The writ will not usually be allowed where its effect is to give the plaintiff the principal relief he seeks without ever bringing the cause to trial." The same authority, at the same page, also says: "A preliminary injunction is not a matter of strict right. Its issuance rests in the sound discretion of the court; and the exercise of this discretion in granting or refusing the injunction will not, as a general rule, be reviewed on appeal, or otherwise controlled or interfered with." See the large number of authorities cited in the footnotes to the text quoted above.

In the case at bar the plaintiff's complaint shows his right to a certain mining claim: shows that the defendants were trespassing thereon, cutting timber for the purpose of removing the same, and would remove the same unless prohibited by the process of the court. It is true that the answer denies the title in the plaintiff, but it admits that the defendants were cutting timber upon said mining claim at the time the action was commenced. Suit was commenced October 9, 1900. The temporary injunction complained of was issued on the 26th day of February, 1901. The notice of the application for the injunction stated that an injunction would be asked "restraining the above-named defendants and all other persons from removing the timber and logs cut off from what is known as the 'Golden Group Placer Claim' by authority of defendants, and now banked on the Middle Fork of Boise river, ready for floating down said river to Boise, Idaho." Appellants complain that the injunction went further than this. This is true, as said injunction commanded that the defendants "do absolutely desist and refrain from entering upon the land and premises, or any part thereof, described in said complaint, and called the 'Golden Group Placer Claim,' and from cutting and removing or cutting or removing timber trees therefrom, or from removing saw logs heretofore cut from said premises, and banked upon the south bank of the Middle Boise river. upon said premises, and ready for floating down said river, and from committing any waste or nuisance upon said

premises, or interfering in any manner whatever with the possession of the plaintiffs of, in, and to said premises, and the trees, timber, and logs thereon, until further ordered in the premises." It was shown at the hearing of the application for the temporary injunction complained of that appellants had ceased cutting timber upon said mining ground. The temporary injunction issued restrains them from further trespassing upon said premises, and from removing said logs or from cutting timber. It is true that the injunction goes somewhat further than the notice specified, yet inasmuch as it commanded them to desist from doing an act that they had already ceased to do, namely, the cutting of timber, the injunction in this respect did not prejudice any right of the appellants, and the order granting same should not be reversed on that ground. The palpable object and intention in granting the temporary injunction complained of is to preserve the property in dispute in statu quo until the title is decided. Under the statute cited, and the construction thereof in the case of Gilpin v. Mining Co., supra, I am of the opinion that the plaintiffs were entitled to said injunction, and that the action of the judge of the district court in granting it should be affirmed. This statute modifies the old rules of chancery in regard to the issuance of injunctions. It says nothing whatever about the lack of an adequate remedy. We are therefore of the opinion that the authorities cited by the appellants to the effect that, if an adequate remedy exists in behalf of the plaintiffs, said injunction should be refused, have no application whatever to the case at bar, under the statute cited. The evidence produced at the application for injunction on behalf of plaintiffs shows that great damage would result to the plaintiffs if the appellants were permitted to remove the logs which they have heretofore cut upon the ground claimed by the plaintiffs. The evidence further shows that this timber has a peculiar value to the plaintiffs, for the reason that it is necessary for the working of the placer ground claimed by plaintiffs, and that its removal would necessitate the procuring and moving to the ground of other timber. The appellants insist, on the other hand, that the value of this timber can be ascertained, and damages can be fully computed, for which reason the injunction should not be issued, the defendants being solvent. Those were the ancient chancery rules, but not the rule of our statute cited supra, and as heretofore construed in Gilpin v. Mining Co., cited supra. It has been held repeatedly in this court that the granting of an injunction is a matter within the discretion of the lower court and the judge thereof, and that that discretion should not be disturbed except in cases of clear abuse of discretion. The allegations of the complaint, if sustained at the trial, will establish the ownership of the plaintiffs in the mining ground described,

and to the timber cut therefrom by appellants, and which they have been temporarily restrained from removing, and the plaintiffs should be protected until the question of ownership is determined. If plaintiffs succeed in establishing their title, they are entitled to protection to their property in specie. Without the aid of injunction, I know of no other remedy which will fully protect them in their rights.

But, going beyond the statute cited, and the case of Gilpin v. Mining Co., supra, and Aveline v. Ridenbaugh, 2 Idaho, 158, 9 Pac. 601, the trend of modern decisions and authorities upholds the right of plaintiffs to the remedy of injunction granted them temporarily by the district court. See the following authorities: Davis v. Reed, 14 Md. 152; Fulton v. Harman, 44 Md. 253; Shipley v. Ritter, 7 Md. 408, 61 Am. Dec. 371; Smith v. Rock, 59 Vt. 232, 9 Atl. 551; De La Croix v. Villere, 11 La. Ann. 39; Lanier v. Alison (C. C.) 31 Fed. 100; U. S. v. Guglard (C. C.) 79 Fed. 23; Smith's Appeal, 69 Pa. 474; King v. Campbell (C. C.) 85 Fed. 814; Disbrow v. Hardwood Co. (Sup.) 59 N. Y. Supp. 378; King v. Stuart (C. C.) 84 Fed. 546; Watson v. Sutherland, 5 Wall. 74, 18 L. Ed. 580; Irwin v. Lewis, 50 Miss. 368; U. S. v. Parrott, 7 Morr. Min. R. 335; Boyce's Ex'rs v. Grundy, 3 Pet. 210, 7 L. Ed. 655. In Watson v. Sutherland, supra, the court said: "If the remedy at law is sufficient, equity will not relieve, but it is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." We are not in sympathy with the idea that a trespasser, notwithstanding that he may be solvent, may go upon the lands of another and cut timber thereon, and that the owner of such lands is not, under our statute cited supra, entitled to a temporary injunction to restrain the removal of said timber until the owner can establish his title to said land in an action commenced for that purpose. As was well said by Mr. Chief Justice Beatty in Gilpin v. Mining Co., supra, the inconvenience to the defendant from a temporary injunction will be less than would be the injury to plaintiff should plaintiff succeed in establishing his right.

The record before us shows that the judge of the district court, before granting the temporary injunction complained of, required the plaintiffs to execute an undertaking therefor in the sum of $3,000, presumably the full value of the logs in dispute, which undertaking was executed; and no objection appears to have been taken thereto,-either as to the form of the undertaking, or the sufficiency of the surety thereon.

In closing, it is well to suggest that the appellants here do not assert title to the mining property claimed by plaintiffs, but disclaim any claim thereto. They claim their right to the timber in question on the ground

that the land is vacant mineral land of the United States government. This does not help their case. Plaintiffs set up a placermining location of said ground, and claim title thereunder. The property in question should be preserved until their alleged title is determined. Section 2322, Rev. St. U. S., secures the plaintiffs, under their location, if legally made, the possession of their mining claim. That section of the statute provides that the locator or owner "shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location," etc. The right granted by this statute is a strong and additional reason why the temporary injunction complained of here should not be disturbed pending the litigation as to the title asserted by plaintiffs. For the foregoing reasons, the order granting the temporary injunction appealed from should be, and is, affirmed. Costs awarded

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1. The supreme court has full power to review all questions of law and fact in equity cases, and to set aside the judgment of the lower court, if, in the opinion of the supreme court, such judgment is not supported by the evidence; but this rule is subject to the principle that when such cases have been regularly tried before a court of chancery, and it has found on all material issues, such findings will not be disturbed unless so manifestly erroneous as to demonstrate oversight or mistake which materially affects the substantial rights of appellant.2

2. An appropriator of water is not confined to an appropriation simply for the amount of land irrigated during the first year of his diversion. The extent of an appropriation of water is determined by the reasonable necessity for the use of the water, by the intention of the appropriator, followed by a reasonable diligence in executing such intent, and by the beneficial purpose for which the appropriation is made.3

3. An estoppel will not arise simply from a breach of promise as to future conduct, or from a mere disappointment of expectations. The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right.

(Syllabus by the Court.)

1 Whittaker v. Ferguson, 51 Pac. 980, 16 Utah, 242. McKay v. Farr, 49 Pac. 649, 15 Utah, 261. See, also, Klopenstine v. Hays, 57 Pac. 712, 20 Utah, 45; Larsen v. Onesite, 59 Pac. 234, 21 Utah, 38.

Hague v. Irrigation Co., 52 Pac. 765, 16 Utah, 421, 41 L. R. A. 311.

Appeal from district court, Carbon county; propriated a sufficient or any quantity of the Jacob Johnson, Judge.

Action by L. A. S. Elliot against George C. and James Whitmore. Judgment for defendants, and plaintiff appeals. Affirmed.

The complaint in this action was filed September 8, 1887, and alleges that plaintiff is and was the owner of certain described lands in Emery county, and that in July, 1885, for the purpose of irrigating and cultivating said lands, he appropriated all of the waters then running into a stream called "Grassy Trail Creek," and that in July, 1885, he diverted and conveyed upon said land all of the waters of said creek, except so much as the com plaint alleges the defendants are entitled to. The complaint further alleges that the defendants own land situate above plaintiff's land on the creek; that prior to the above appropriation plaintiff and defendants had made certain appropriations, which the complaint alleges to be as follows: That the defendants were entitled to a primary right to 61⁄2 acres, and no more, and that the plaintiff was entitled to a secondary right to a quantity sufficient to irrigate 25 acres, and that the defendants were then entitled to an additional right to irrigate 224 acres; "and that, subject to the foregoing rights and appropriations, the plaintiff is entitled to all waters flowing in said creek." Plaintiff also alleges that a large portion of his land is under present cultivation, and that it is his intention to proceed to further cultivate the entire tract of land owned by him, amounting to about 1,240 acres of land, and that he has already expended several thousand dollars in appropriating and diverting the said waters to the lands, and in making permanent improvements upon the same. Plaintiff claims that defendants have unlawfully diverted all the waters of said creek from the channel and from plaintiff's land, and refuse to allow any part of the stream to flow down upon his land, and that the defendants threaten to continue such wrongful diversion, to plaintiff's damage. Wherefore plaintiff prays a decree determining the rights of the parties to the waters of the creek, and for an injunction restraining defendants from interfering with plaintiff's water during the irrigation season. Defendants' answer denies the material allegations of the complaint, and especially that plaintiff in July, 1885, or at any other time, or at all, appropriated all or any of the waters running in Grassy Trail creek, but, on the contrary, the defendants allege that in 1879 they diverted for irrigation purposes all and every part of the waters flowing in said creek upon the lands belonging to them; that all of said waters were then, and ever since have been, necessary for the proper cultivation of their lands; and that they have continuously during the irrigation season of each year so diverted all of said waters. Defendants deny specifically that plaintiff at any time diverted or ap

waters of said creek to irrigate 25 acres of land, or any amount whatever, and they deny that plaintiff is entitled to any rights in or use of the waters of said creek during the irrigation season, but, on the contrary, the defendants allege that they are so entitled. Defendants deny the unlawful diversion and damage, and pray that they be adjudged the owners of all the waters flowing in the creek during the irrigation season of each year, and that the plaintiff be enjoined from the use or diversion of any of said water during such irrigation season.

Dur

The evidence is very voluminous, and somewhat contradictory, but it shows, in substance, that the defendants commenced the occupation of their lands in 1878, and that they built a house and corral and erected some fences and cleared some lands for cultivation during the winter of that year. In the spring of 1879 they built a ditch threefourths of a mile long from the creek in question, and diverted water to the upper part of their lands, and irrigated a few acres, upon which they successfully raised corn. ing the winter following, defendants cleared some more land in the upper field, and in the spring of 1880 their ditch was somewhat enlarged and straightened, and nearly the whole upper field irrigated and cultivated. That same year the plaintiff began to occupy his land for sheep-herding purposes, erected a stable, and used about 111⁄2 acres for meadow; said meadow having upon or near it some springs known as "Big Springs." In 1881 defendants cultivated and irrigated all of the upper field, and cleared part of the middle field. The plaintiff that year fenced his ineadow, and tried to irrigate it by means of the springs, but, as they only watered part of the land, he constructed and completed in the fall a small ditch from Grassy Trail creek to his land, and diverted some water through such ditch, after defendants had used such water. During the following winter the defendants finished clearing their middle field and fenced it, and in the spring of 1882 continued their ditch to such field, and that year cultivated and irrigated both fields. Plaintiff did some work on his ditch that year, and once diverted water from the creek to his meadow, but did not otherwise use the water at all. In 1883 defendants cleared part of their lower field, and cultivated and irrigated the upper and middle fields, while plaintiff failed to use any water on his land that year at all. During the following winter defendants cleared more of their lower field, and continued their ditch to such field. In 1884 they cultivated and irrigated the upper and middle field, and probably a part of the lower field. That year the plaintiff enlarged his ditch, and ran water through it from the creek and onto his pasture. During that winter defendants finished clearing their lower field, and in 1885 they cultivated and

irrigated all three fields. In April or May | premises, but no crop was secured on the

of that year plaintiff and defendant George C. Whitmore met upon the land in question, and some conversation was engaged in between them, the effect of which was that defendants did not intend increasing their cultivation; that there was then a good flow of water in the creek, but that it would soon be less. Plaintiff claims that in addition to this conversation he further told Whitmore that he (plaintiff) was intending to cultivate largely, and to take out a large ditch and control the creek, to which Whitmore replied that that was all right, and that thereupon plaintiff asserted his right to the use of the water after defendants' primary water right to the upper field, but stated that, if defendants were not going to increase their cultivation, he (plaintiff) would not bother about such right, to which Whitmore replied: "Go ahead. We won't quarrel about it." This additional part of the conversation Whitmore denies. Plaintiff claims that, relying upon this conversation, he commenced in the summer of 1885 the construction of a "big ditch," higher up on the creek than the first one constructed by him, but which ditch was not completed that year. He also broke up about 100 acres of farming land above the Big Springs, and tried to raise a crop without irrigation, but failed. It was plaintiff's intention to construct a series of ditches, and cultivate and irrigate at all times as much land as he could out of 1,280 acres then controlled by him. He has also since said conversation made valuable improvements upon the premises. It appears that an additional ditch, called "Wales Ditch," was also commenced by plaintiff that year, which ditch was situated between his other two ditches. In January, 1886, plaintiff and defendant George C. Whitmore had another conversation in Nephi, in which plaintiff wanted Whitmore to give him a written agreement regarding plaintiff's rights in the waters of the creek, but Whitmore declined, and plaintiff thereupon desired him to come to Salt Lake City and see him about the matter. Whitmore failed to go, although plaintiff telegraphed him repeatedly; but finally plaintiff, knowing that he was attending a funeral in Salt Lake City, waited for him, and in the evening accompanied him to the back rooms of a saloon, and thereupon sent for an attorney, and on his arrival plaintiff again requested Whitmore to sign a written agreement as to their water rights, which Whitmore again declined, after which plaintiff threatened to take the matter into court. - During that year defendants cultivated and irrigated their entire field, and probably five or six acres more, in rounding off the corners of their lower field. The plaintiff completed his big ditch this year, but, the dam going out in the spring, it was not put back until August, and in the fall or late summer water went through the ditch and upon plaintiff's

farming land. In 1887 defendants again cultivated and irrigated all their cleared lands until September, when they were served with an injunction in this action. Plaintiff irrigated the meadow from the creek through the big ditch, but got no water at all upon his farming land. That fall plaintiff also plowed and sowed 500 acres of farming land. It appears from the evidence that the stream in question is a very small one, except during freshets and high water in the spring and fall, and that at times it is insufficient to irrigate all of defendants' lands, or to even fill defendants' ditch, which is about a foot and a half deep, and from one and a half to two feet wide.

The trial resulted in a decree for the defendants, awarding to them the ownership by a prior appropriation of all the waters of said creek, except in high water, and during such season their ownership extended to water sufficient to fill their ditch. From such decree the plaintiff appeals to this court, assigning as his principal ground of reversal that the evidence is insufficient to support the third finding of fact as made by the trial court. That finding reads as follows: "(3) That Grassy Trail creek is a natural stream of water flowing from the mountains northeast of the lands of the defendants above described, and in a southwesterly direction through said lands; that the said creek is fed from springs and rains and the melting snows in the mountains; that during the months of April and May of each year, and during the heavy showers of rain, said creek is high and contains large quantities of water, but that during the remaining seasons of each year said stream is a small stream, the water therein is low and contains but little water; that during the year 1879 the defendants began the cultivation of their said lands, and to irrigate the same from the waters of said creek, and for that purpose appropriated the waters of said creek by the construction of a dam across said creek, and a ditch from said dam to and upon said lands, and by means of said waters raised crops of corn and other cereals, hay, and vegetables, and have so continued from said date to the present time; that in the year 1880 the defendants enlarged their ditch so that the same was 18 inches wide on the bottom, 2 feet wide at the top, and 18 inches deep, and capable of carrying all the water of said creek except in the high-water season; that ever since said year 1880 the defendants by means of said ditch have diverted and used all the waters of said creek, except in the seasons of high water as aforesaid, and applied the same for the irrigation of their said lands, and that said water is not more than sufficient for that purpose, and that said water has been applied to a beneficial use, to wit, that of irrigation for agricultural purposes;

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