Stewart v. Superior Court of San Diego Cty.
Before: Paterson
Synopsis
Appeal—Bond—Stay of Execution—Mandatory Injunction—Connection of Pipe-lines—Contempt.—An ordinary appeal bond in the sum of three hundred dollars upon an appeal from a judgment enjoining the defendants from interfering with the plaintiff in making a connection of his water-pipe with a pipe-line of the defendants, operates as a supersedeas to stay execution of the injunction, which is mandatory in its nature in so far as it authorizes the plaintiff to connect his pipe with that of the defendants; and where it appears that the plaintiff had not made such connection prior to the commencement of the action, but after the judgment and perfecting of the appeal had entered the defendants’ premises and made the connection of the pipes, the defendants were not guilty of contempt of court in breaking the connection and restoring the pipe to its original condition.
Id.—Mandatory or Permissive Injunction Stayed by Appeal.—Although, as a general rule, an injunction is not dissolved or suspended by an appeal, yet this is not true where the judgment commands or permits some act to be done. In such a case the proceedings are stayed by the perfecting of an appeal, as to all affirmative action looking to the execution of the terms of the decree.
Id.—Injunction, When Mandatory.—An injunction, though restrictive in form, is in fact mandatory if it has the effect to compel the performance of a substantive act.
Paterson, J. This is an application for a writ of review to annul an order of the court below adjudging petitioners guilty of contempt, for the disobedience of its judgment.
It appears that the petitioners, Julia V. Stewart and W. B. Prentice, entered into a contract with one Hill, whereby they agreed to deliver to the latter or his executors, representatives, and assigns, at a certain point on the line of their pipe, water not to exceed ten miner’s [544]inches in perpetual flow under a four-inch pressure, for a term of twenty years. Thereafter Hill sold and assigned all his rights under the contract to one J. W. Sefton, who constructed a pipe-line extending from the point mentioned in the contract to his ranch, and thereupon demanded of Stewart and Prentice that he be allowed to make a direct connection between his pipe and the pipe-line of Stewart and Prentice, and to divert from the flume two inches of water. This demand was refused by Stewart and Prentice, who claimed that he had no right to make such connection, whereupon Sefton instituted an action against them, in which, upon proper allegations made, he prayed that an injunction might issue commanding the defendants not to interfere with the plaintiff in effecting a connection of his pipe with the conduit of the defendants, and for the sum of one thousand dollars damages. Thereupon the court issued a temporary injunction in accordance with the prayer of the complaint, which was afterwards on motion of the defendants dissolved, and the plaintiff was ordered to detach his pipe -from the pipe-line of the defendants, the connection having been made during the pendency of the temporary injunction. A trial was had upon the merits, and judgment was entered in favor of the plaintiff awarding to him one dollar damages, and the right to connect his line of pipe as prayed for. It was further decreed that the defendants desist, and refrain from interfering with the plaintiff in making the connection of his pipe with the pipe-line of defendants, and thereafter and for the period of twenty-five years in any manner interfering with or preventing the flow of water from defendants’ pipe to the extent of two miner’s inches. Immediately after the entry of the judgment, the defendants perfected an appeal to this court by giving and filing a notice of appeal, and executing and filing an undertaking in the sum of three hundred dollars. Thereafter the plaintiff, notwithstanding the fact that notice of appeal had been filed and served, and an undertaking given, entered upon the premises of the defend[545]
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