McCoy v. Matich

BRAY J.

Plaintiff appeals from an order dissolving a temporary restraining order.

Sole Question Presented :

Whether the trial court abused its discretion in refusing to enjoin pendente lite defendants from erecting gates across plaintiff’s right of way for road purposes.

Record

The complaint alleges that plaintiff and defendant

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own adjoining property, that plaintiff owns an “easement and right of way for road purposes and for the installation and maintenance of public utilities, over, upon and under a strip of land 50.0 feet in width” therein described. It is then alleged that defendant had obstructed said right of way, by destroying the grade level thereof, and removing the crown of the improved road, and that he threatens to “maintain a guard, barricade or fence of heavy steel” whereby plaintiff and all others using the right of way will be prevented from enjoying said right of way. It prays that defendants be enjoined from permitting any such barricade to be on the premises and that defendants be required to remove it.

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A cause of action to quiet plaintiff’s title to the right of way and one for damages for loss of lateral support of soil due to an alleged excavation on plaintiff’s land are included. Plaintiff also filed an affidavit for a temporary restraining order. An order to show cause and a temporary restraining order restraining defendants from obstructing the right of way were granted ex parte. The hearing apparently was had on the complaint and affidavit only, as defendant, although resisting the application, filed no pleadings. The court dissolved the temporary re

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straining order “except as to any excavation contemplated by defendant which may tend to weaken the lateral support of plaintiff’s property.” No action was taken on the plaintiff’s application for a preliminary injunction (presumably, no action constitutes a denial).

Discretion'