Hatch v. Raney

BURNETT, J.

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

[717]

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 Pac. 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,