Santa Cruz Fair Building Ass'n v. Grant

Harrison, J. Under proceedings for the extension of Front street in the city of Santa Cruz, by' virtue of the provisions of the aet of March 6,1889 (Stats. 1889, p. 70), the assessment had been confirmed by the city council and placed in the hands of the superintendent of streets, and the defendant, who was such superintendent, was proceeding to collect it under the provisions of the act. The plaintiff, claiming to be the owner in fee of certain lands that had been assessed for the proposed improvement, commenced this action to obtain a judgment that the assessment was made without authority or jurisdiction on the part of the city, and that no lien upon its land was created thereby; and also that the defendant be enjoined from selling said lands to satisfy said assessment. In the complaint the plaintiff alleged, as the basis of its cause of action, that the city council had never passed any resolution describing the land deemed necessary to be taken for- the extension of Front street, or specifying the exterior boundaries of the district to be affected by said improvement, and after alleging the various steps taken under the above statute, further alleged that the defendant had advertised its lands described in the complaint for sale at public [308]auction, and was threatening to sell the same for the purpose of satisfying said assessment. Prior to the issuance of the summons, the plaintiff moved the court upon the complaint that a preliminary injunction be granted at the time of the issuance of the summons, restraining the defendant during the pendency of the action from selling the land as described in the complaint. The court denied the application, and from this order the plaintiff has appealed.

The granting of a preliminary injunction is not a matter of right, but the application is addressed to the sound discretion of the court, which is to be exercised according to the circumstances of the particular case (High on Injunctions, sec. 11); and its action upon such application will not be reviewed in the appellate court unless it shall clearly appear that there was an abuse of its discretion. Upon such application a court will consider whether a greater injury will result to the defendant, from granting the injunction than to the plaintiff from refusing it; and if the court is satisfied, from the nature of the action and the threatened injury, that the rights of the plaintiff will be fully conserved by granting an injunction after a hearing upon the merits, while, in case the plaintiff should fail to sustain his complaint, the injury sustained by the defendant from the preliminary injunction could not be compensated, a wise discretion would dictate its refusal. (Olmstead v. Koester, 14 Kan. 467). And in granting an injunction the court, is bound to consider the amount of injury which may be thereby inflicted on strangers to the suit and third parties. (1 Joyce on Injunctions, 497.) Chancellor-Walworth said in New York Printing and Dyeing Establishment v. Fitch, 1 Paige, 98: “ There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, where it would be manifestly improper to grant an injunction in limine. The final injunction is in many cases matter of strict right, and granted as a necessary consequence of the-