Hartsif v. Wann

GRIFFIN, J.

Plaintiff and respondent brought this action against defendant alleging that plaintiff was possessed of a certain mining claim and defendant owned a certain quarter section of land contiguous to it; that a certain road to plaintiff’s mine traversed defendant’s property and was used by the general public, including plaintiff, for more than 35 years: and that defendant constructed a fence across it to the detriment of plaintiff. An injunction is sought, and a temporary restraining order was issued on March 25, 1955, restraining defendant from interfering with plaintiff’s access to his mining property over said road.

Defendant answered and by way of cross-complaint seeks to quiet her title as against plaintiff to her real property.

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After a hearing on the temporary restraining order and an order to show cause for contempt, the court, on May 2, 1955, issued a preliminary injunction, fixed bond at $200, and ordered the contempt proceedings off calendar. Later, after a hearing on the contempt order, defendant was found guilty of contempt and allowed one week in which to purge herself. The ease is now at issue and untried. She appeals from the order granting a preliminary injunction which, during the pendency of the action, enjoined and restrained her from “obstructing or interfering with the use by the general public” including plaintiff, of the road in question.

At the hearing plaintiff filed about eight affidavits alleging use of the disputed right-of-way in excess of the statutory period and that it was the only access to a spring of water on the mining claim. Defendant, by affidavits, alleged that there was another road to plaintiff’s mining claim, across other property of an adjoining owner; that no roads were in evidence across defendant’s property when she purchased it in 1945; that the road in question was bulldozed in 1952 by plaintiff; and that the alleged roadway was obstructed by a fence erected across it by the defendant prior to the filing of this action. She argues that no injunction should issue to prevent an act already completed, to wit, erection of the fence, citing

Snelling

v.

Civil Service Board,