Goodall v. Superior Court

SHAW, J.

A writ of review was issued herein upon a petition wherein this court is asked to annul an order dismissing a proceeding instituted in the trial court to have one Mrs. Lora J. Moore adjudged guilty of contempt for the disobedience of a judgment enjoining her from doing the acts of which petitioner complains.

The proceeding was instituted by the filing of an affidavit setting forth the fact that in the year 1908, in a certain action wherein petitioner was plaintiff and certain persons were defendants, a judgment was rendered in favor of petitioner and against the defendants perpetually enjoining them and their assigns, as the owners of a certain tract of land, from obstructing the natural flow of water in its usual course through a certain creek that extended across said tract of land which adjoined a parcel of land owned by plaintiff; that subsequent to the date of said judgment Mrs. Moore, by mesne conveyances, obtained title to said tract of land and at all times since her acquisition thereof has been in possession of the same; that some time subsequent to June, 1913, Mrs. Moore, as owner of said tract of land through which the waters of said creek flowed, erected and caused to be erected across said stream and upon the land so acquired and owned by her certain concrete walls, dams, and bridges, by reason whereof the waters of said creek were obstructed and diverted from their natural and accustomed course and caused to back-flow upon and across the lands of petitioner, to his irreparable damage and injury; that prior to the doing of said acts, and ever since, Mrs. Moore had knowledge of the existence of said perpetual injunction enjoining her predecessors in interest in said land and their assigns from doing the acts complained of; that Mrs. Moore has at all times, with full knowledge of said injunctive order, refused to obey the same or to remove said walls, dams, and obstructions.

Upon the filing of the affidavit the court issued an order requiring Mrs. Moore to show cause why she should not be punished as for a contempt of 'court for disobedience of the order contained in said judgment so rendered in the action

[725]

wherein her predecessors in interest in said land were defendants. In compliance with this order she filed an affidavit, alleging affirmatively, among other things, as grounds why she should not be adjudged guilty of contempt, first, that petitioner was guilty of laches, “in this, that it appears by said affidavit that said plaintiff was cognizant of all the acts of said Lora J. Moore complained of in said affidavit for over four years before the issuance of said order to show cause”; and further, that petitioner caused to be made an estimate of the cost of labor and material which would be required in protecting his land from damage due to the obstruction of said stream by Mrs. Moore, and informed her that the cost thereof would be the sum of three thousand five hundred dollars, and demanded that she should pay said amount to plaintiff; “and affiant is informed and believes that these contempt proceedings are undertaken to enforce said payment of three thousand five hundred dollars from affiant to plaintiff.” Other matters of an affirmative character, as constituting ground why defendant should not be punished for the acts committed, are averred in the affidavit. On the return day specified in said order to show cause and upon the presentation of the affidavit of Mrs. Moore, the court requested counsel for the respective parties to submit authorities upon the question of the sufficiency of the demurrer filed by Mrs. Moore, saying that in the event the demurrer was sustained, the proceedings would be dismissed, and that in case it was overruled, the matter would be set down for hearing on its merits. Thereafter the court, without further hearing, made an order as follows: “It appearing to the court that the petitioner has been guilty of laches to such an extent as to cause this court to believe that this contempt proceeding ought not to have been inaugurated, and it further appearing from the affidavit of Mrs. Lora J. Moore, and the admissions made by the attorney for the petitioner, that this proceeding was inaugurated for the purpose of compelling Mrs. Lora J. Moore to pay to the petitioner money which he claims she ought to pay to him. It is ordered that the contempt proceedings in said action inaugurated against Mrs. Lora J. Moore, named in the affidavit of Harry W.' Goodall as Mrs. Laura J. Moore, be and the same is hereby dismissed.”