(62 South. 140.)

No. 19,705.

#### VICKSBURG, S. & P. RY. CO. v. WEBSTER SAND, GRAVEL *&*CONSTRUCTION CO. et al.

(May 12, 1913.)

*(Syllabus by the Oourt.)*

On Motion to Dismiss.

1. Appeal and Error (§ 640*) — Dismissal-Grounds.

An appeal will not be dismissed for imperfection in the stenographer’s report of the testimony where it does not appear that appellant was more to blame for it than appellee.

[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2788, 2829; Dec. Dig. § 640.*]

2. Appeal and Error (§ 100*) — Appealability— Dissolution op Injunction.

As an appeal will lie from an order of court dissolving a prohibitory injunction against a disturbance of possession of immovable property, even though a bond be required to protect the plaintiff in the writ, a fortiori will it lie when such injunction is, in effect, dissolved, and the status which it was intended to preserve is disturbed by the illegal act of the defendant, and the court by which it was issued denies plaintiff’s application for a mandatory injunction to compel defendant to restore the status as it existed before the disturbance.

[Ed. Note.— Error, Cent. 100.*] •Eor other cases, see Appeal and Dig. §§ 670-680; Dec. Dig. '

3. Appeal and Error (§ 100*) — Appealability — Injunction — Denial op Immediate 'Reliep.

Where the possession of immovable property is disturbed and the possessor invokes the action of the court, by way of a mandatory injunction, for his immediate relief, the judgment of the court refusing to grant the immediate relief is so far final as to entitle the applicant to an appeal.

[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. §

4. Injunction (§§ 229, 231*) — Right op Appeal.

Whether a defendant in injunction, who violates the same, should be punished for the contempt shown the court concerns the court in the matter of the maintenance of its dignity and authority; but whether, by coercive or punitory measures, such defendant should be compelled to obey the writ, issued by a competent court, for the preservation of a civil right asserted by the plaintiff, concerns the plaintiff, and the action of the trial court upon that question may be subject to review in this court on appeal.

[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 496-501, 517; Dec. Dig. §§ 229, 231;* Appeal and Error, Cent. Dig. § 680.]

On the Merits.

5. Injunction (§ 215*) — Mandatory Injunction — Right.

It is well established under our law and. jurisprudence, and is a rule of well-nigh universal acceptance, that where the status intended to be preserved by a prohibitory injunction is changed or disturbed by the defendant, in violation of that writ, such defendant may be-compelled by a mandatory injunction, issued-before the trial on the merits, to restore such status. In fact, the authorities hold that a mandatory injunction may in some cases issue preliminarily and ex parte, and not only to restore a pre-existing status, but to compel affirmative action in the establishment of a status which should have existed.

[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 438; Dee. Dig. § 215.*]

6. Appeal and Error (§ 1178*) — Decision on-Appeal.

A case will be remanded for further evidence where the interests of justice appear to require it.

[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.*]

Appeal from Second Judicial District Court, Parish of Webster; John N. Sandlin, Judge.

Action by the Vicksburg, Shreveport & Pacific Railway Company against the Webster Sand, Gravel & Construction Company and others. From judgment for defendants, plaintiff appeals.

Reversed and remanded.

Stubbs, Russell & Theus, of Monroe, for appellant. Stewart & Stewart and L. K. Watkins, all of Minden, for appellees.

Statement of the Case.

MONROE, J.

Plaintiff prosecutes this appeal from a judgment wherein the district court holds defendant and certain of its officers and employes guilty of contempt and, imposes fines upon them for having violated a writ of injunction by removing portions *1054of the roadbed and rails, and thereby interfering with plaintiff’s possession of a certain “spur track,” and whereby the court denies its (plaintiff’s) prayer for a mandatory injunction ordering defendant to restore said track to the condition that it was in prior to said disturbance by defendant. The facts of the ease are as follows:

Plaintiff brought this suit in July, 1910, alleging that it had been in actual and undisturbed possession, with the consent of the owners, for more than two years, of the right of way over which its spur track is built, and had used said track as part of its interstate railway system; that about July 27th defendant took forcible possession of 1,800 feet of said track and removed the rails therefrom, was then detaining the same, thereby preventing plaintiff from operating its trains, and was threatening to remove additional rails; and that plaintiff had been, and would continue to be, damaged thereby; and it prayed for a prohibitory injunction against further trespass, and a mandatory injunction to compel defendant to restore the status quo, and for damages. The prohibitory injunction was issued preliminarily, “restraining and prohibiting said defendants [the defendant company and certain named officers and employes] from trespassing upon, or interfering with plaintiff’s possession of, its spur track, * * * and from operating trains or other vehicles over said track or right of way or any part thereof”; and defendant was ordered to show cause why the mandatory injunction should not issue as prayed for.

Defendants filed various exceptions and an answer, and counsel for plaintiff now make the statement, in the brief filed by them, and which does not appear to be denied, that:

> “Under verbal agreements, not in the record, the track which had been removed was rebuilt by defendant and the prohibitory injunction remained in full force and effect,” etc:

In the meanwhile, defendant had brought a petitory action, praying to be decreed the owner of the strip of land in question, and that plaintiff be ordered to remove its tracks therefrom, and, as it was pressed to trial and brought by appeal to this court, plaintiff’s injunction suit was allowed to remain in abeyance, probably, to await the outcome of that litigation. The petitory action was disposed of in this court in January, 1912 (rehearing refused February 12, 1912), by a judgment in which it was held and decreed as follows:

> “The judgment of the district court decrees the title to the strip of land in question to be in plaintiff; ‘that the injunction herein sued out * * * be maintained and perpetuated; and that the * * * railway company be ordered, within 20 days, to remove their spur track off of said strip of land * * * so as to leave the land unobstructed. * * * ’

> “We have not been able to find any petition or order for or any writ of injunction in the record, and, for the reasons stated, are of opinion that there is error in the judgment referred to, in so far as it purports to enjoin the defendant from continuing to use its spur track and orders the removal of the same. It is therefore * * * decreed that the judgment appealed from be * * * reversed, in so far as it orders defendant to remove its spur track off the strip of land, * * * or otherwise interferes with defendant in the use of said strip, for the purposes of said spur track.” Webster Sand & Gravel Co. v. Vicksburg, S. & P. Railway Co., 129 La. 1096, 57 South. 529.

In May following the rendition of the above-quoted judgment, plaintiff filed a petition in this case, alleging:

> “That the said F. H. Drake, president of said [defendant] company, did, on or about the 24th day of April, 1912, personally direct and cause * * * 458 feet 0f gteel rails and 233 feet of petitioner’s said branch or spur tracks to be removed, and did on said date, and has continuously since then, caused the crew of said company, operating a steam shovel, to excavate the grounds, or a portion thereof, on which said * **** spur track is constructed, and took * * * unlawful possession of petitioner’s right of way, off of which said track was removed, and has * *■ * converted to its own use said 458 feet of steel rails, * * * all in flagrant defiance and contempt of this honorable court, its orders ana writ of injunction,” etc.

And, agreeably to the prayer of the petition, the defendant company and its presi*1056dent were ordered to show cause why they should not be punished for contempt and why a mandatory injunction should not issue commanding them forthwith to “restore said steel rails and- restore said spur tracks to the condition that they were in prior to said trespass.”

The transcript shows that, when the rule came on to be heard, it was discontinued, at the instance of plaintiff, on defendant’s paying costs, and it is alleged, and apparently conceded, that the reason for the action so taken was that defendant’s president appeared in court and stated that the acts complained of were done inadvertently, and agreed to repair the resulting damage and abstain from further trespass.

Thereafter, however, on August 1st, plaintiff filed the petition and rule, from the judgment on which this appeal is taken, and wherein it alleges: That the defendant company, E. H. Drake, its president, and L. H. Blackman, its foreman—

> •‘did, on or about the 1st day of July, 1912, * * * beginning 300 yards from the washing plant of said * * * company, excavate and remove more than 8,000 cubic yards of petitioner’s right of way, which said excavations extended for a distance of more than 290 feet, and excavated from each side of said right of way, leaving a narrow and insecure strip of said right of way, with said excavation or cut on each side, for more than 290 feet, at least 13 feet deep, and undermined'more than 65 feet of petitioner’s railroad track, used as a siding, and caused said track to fall to the bottom of said excavation for want of support, where the same now lies, totally and wholly destroyed, and on the opposite side of said right of -way made a similar excavation or cut and undermined petitioner’s main line track so as to cause the earth to cave and render the same insecure for the operation of trains over the same; and, on account of said trespass and excavation of its right of way and caving from underneath its main line track, it is impossible to operate even the lightest train over the same; and, in addition to the above alleged acts of-trespass, said company, Drake, and Blackman excavated and removed dirt and gravel from petitioner’s right of way up to the ends of the cross-ties on its other side track for a distance of fully 294 feet, which said cut or excavation is fully 13 feet in depth, and caused a wall, almost perpendicular, 13 feet high, up to the ties of said track, which renders the same wholly insecure and unsafe to operate trains or locomotives over; * * * the above alleged trespass having begun on or about the 1st day of July, 1912, and continued for each and every day up to the 21st day of i July, 1912. Petitioner further shows that said * . * * company and E. H. Drake have operated trains over petitioner’s said tracks and right of way during every week since the issuance and service of said writ of injunction.”

Plaintiff prayed that the defendant company, its said president and foreman, be required to show cause why they should not be “ordered forthwith to rebuild said destroyed track, refill the excavation, and restore said tracks' and right of way to their condition prior to said alleged trespass,” and further to show cause why they should not be fined and imprisoned; and the order nisi was so made. After a full hearing upon the facts and law, as presented by the parties', the court a qua gave judgment as follows:

> “That-the respondents Webster Land, Gravel & Construction Company be and are hereby adjudged in contempt of this court, and are each ordered to pay a fine of $1 and all costs of this suit; the judgment for costs being a solidary judgment, except the costs incurred on the rule against respondent L. H. Blackman, which are taxed against relator; said L. H. Blackman being hereby dismissed, and the rule as to him being discharged. All other demands of relator are rejected.

> “It is further ordered and decreed that the rights of the plaintiff, if any it, has, to sue for damages, be and are hereby specially reserved.”

Plaintiff, as we have stated, prosecutes the appeal.

On Motion to Dismiss Appeal.

The defendant company and E. H. Drake, appellees, move to dismiss the appeal on the grounds: (i) That the transcript is incomplete, the testimony having been so inaccurately transcribed as to be unintelligible; (2) that, the judgment being interlocutory and not final, and the injury thereby inflicted not being irreparable, no appeal lies; (3) that no appeal lies from a judgment on a rule for contempt.

*1058[1] 1. The clerk certifies to the correctness of so much of the transcript as contains the pleadings and documentary evidence, and with that there appears to be no cause of complaint. With regard to the oral testimony, the stenographer certifies that:

> “The above * * * 60 pages of evidence compose, to the best of my ability, a true and correct transcript of my shorthand notes,” etc.

The work of the reporter leaves much to be desired; but, as there is nothing to show that plaintiff is any more responsible for its imperfections than defendants, the appeal will not be dismissed on that account.

[2] 2. The whole purpose of this suit is to protect plaintiff in its possession and alleged right of possession of immovable property, and the purpose of the preliminary injunction was to preserve the status quo until the question whether such right existed could be decided. That question was decided by this court in the petitory action, and yet, notwithstanding that it was there held, contradictorily with the defendant, that plaintiff has the right to maintain and use its tracks on the land in question, and notwithstanding the injunction of the district court, prohibiting defendant and its officers from interfering with the enjoyment of such right, they (defendant and its officers) have so interfered and have actually dispossessed plaintiff by removing a portion of its roadbed and rails; and, by the judgment appealed from, the district court declines to order them to restore what they have removed.

The Code of Practice (article 298) provides that:

> “The injunction must be granted: * * * (5) When the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a retd right, of which he claims either the ownership, the possession, or the enjoyment.”

And it is well settled that “in such case the judge to whom the application is made is without discretion in the matter and must grant the writ upon the petitioner’s complying with the prescribed conditions.” Beebe v. Guinault, 29 La. Ann. 795; Slaughter House Co. v. Larrieux, 30 La. Ann. 799; State ex rel. Behan v. Judge, 32 La. Ann. 1276; State ex rel. Gaynor v. Judge, 38 La. Ann. 924; Lewis v. D’Albor, 116 La. 684, 41 South. 31. It is equally well settled that an appeal will lie in such case from any order of court dissolving an injunction once issued, whether on bond or otherwise, since the effect of the dissolution would be to change the possession of immovable property, and the injury, in contemplation of the law, would be irreparable. Marion v. Johnson, 22 La. Ann. 512; Boedicker v. East, 24 La. Ann. 154; State ex rel. Sigur v. Judge, 33 La. Ann. 133; Torres v. Falgoust, 33 La. Ann. 560; Sheridan v. Reese, 121 La. 227, 46 South. 218; Bradley v. Davis, 127 La. 371, 53 South. 653.

[3] If, then, an appeal will lie from an order of court dissolving an injunction, even though a bond be required to protect the plaintiff in the writ, a fortiori' will it lie when the injunction is, in effect, dissolved by the illegal act of the defendant in defying or disregarding it, and the court by which it was issued dismisses plaintiff’s application to restore the status quo. Again, the question presented to the court a qua in this case was whether the plaintiff should be afforded immediate relief against an invasion of its right of possession, which right was secured by the prohibitory injunction issued by that court and by a final judgment of this court; and the judgment of the court a qua, to the effect that plaintiff was not entitled to such immediate relief, was final upon that question, and for that reason also the appeal lies. McDonogh v. Calloway, 7 Rob. 442.

[4] 3. Whether defendants should be punished for the contempt shown the court *1060whose order they disregarded concerned the court in the matter of the maintenance of its dignity and authority; but, whether by coercive or punitory measures, they should be compelled to obey that order, issued by a competent court for the preservation of a civil right asserted by plaintiff, concerns the plaintiff, and the action of the trial court upon that question is subject to review in this court on appeal, since there is a civil right involved and a value in dispute exceeding $2,000, exclusive of interest. The motion to dismiss the appeal is therefore overruled.

On the Merits.

[5] Considering the case presented in its appealable aspect (that is to say, with reference to the right of the appellant to have the judgment appealed from reviewed in so far as it denies the mandatory injunction to compel defendants to restore the status established by the prohibitory injunction, and which defendants have changed, in violation of that writ), we find it to be well established under our law and jurisprudence, and to be a rule of well-nigh universal acceptance that, where the status intended to be preserved by a prohibitory injunction is changed or disturbed by the defendant, in violation of that writ, such defendant may be compelled, by a mandatory injunction, to restore it; in fact, the authorities hold that a mandatory injunction will, in some cases, issue preliminarily and ex parte, and not only to restore a pre-existing status, but to compel affirmative action in the establishment of a status which should have existed. Thus in High on Injunction (4th Ed.) vol. 1, it is said:

> “Sec. 2. * * * And while a court of equity is always reluctant to grant a mandatory injunction, upon an interlocutory application and before final hearing, it may yet do so in an extreme case, when the right is clearly established and the invasion of the right results in serious injury. * * * TNote to above.] In. Toledo, A. A. & N. M. R. R. Co. v. Pennsylvania Co. [C. C.] 54 Fed. 730 [19 L. R. A. 387], Judge Taft uses the following language: ‘The office of a preliminary injunction is to preserve the status quo until, upon final hearing, the court may grant full relief. Generally this may be accomplished by an injunction prohibitory in form_, but it sometimes happens that the status quo is a condition, not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon ecmplainant, which he appeals to a court of equity to protect him from. In such a case courts of equity will issue mandatory writs before the ease is heard upon the merits.

> “See. 5. A. Since the object of a preliminary injunction is to preserve the status quo, the court will not grant an order where its effect would be to change the status. * * * And by status quo, which will be preserved by preliminary injunction, is meant the last, actual, peaceable, uncontested condition which preceded the pending controversy, and equity will not permit a wrongdoer to shelter himself behind a suddenly and secretly changed status, although' he succeeded in making the change before the hand of the chancellor actually reached him. And where, before the granting of the injunction, the defendant has thus changed the condition of things, the court may not only restrain further action by him, but may, by preliminary mandatory injunction, compel him to restore the subject-matter of the suit to its former condition, and in so doing the court acts without any regard to the ultimate merits of the controversy.”

In McDonogh v. Galloway, supra, a prohibitory injunction having been issued against an existing obstruction to a passageway, common to the adjoining proprietors, the plaintiff, before the hearing on the merits, applied for a mandatory injunction to compel the defendant to remove the same; and, the application having been refused, he appealed to this court, where the appeal was sustained, and it was held (quoting from the syllabus):

> “An injunction may be directed to parties or to public officers to compel them to do certain acts, as well as to restrain them from acting. It is as effective to enforce a right as to prevent a wrong.” 7 Rob. 442.

In Pierce v. City of New Orleans, 18 La. Ann. 242, a rule was taken on the city of New Orleans requiring it to show cause why it should not be enjoined and ordered to close up certain openings made by it in a *1062wall held in common; and, the rule having been made absolute during the pendency of the suit, the city appealed to this court, where it was said:

> “There is a sufficient showing in the plaintiff’s petition to entitle him to the equitable interference of the courts; but what we have to determine now is whether pendente lite, and before a trial on the merits, an order should be granted directing the performance of, as well as the restraining from, an act.”

The court then refers to certain English cases holding the contrary, and, affirming the doctrine enunciated in McDonogh v. Calloway, concludes that the order was properly granted.

In Black v. Good Intent Tow Boat Co., 31 La. Ann. 497, the court, construing the decision in McDonogh v. Calloway to mean that, where one is enjoined from obstructing a passageway, his maintenance of an existing obstruction is a violation of such injunction, approved the doctrine that a mandatory injunction directing the removal of the obstruction may in such case issue before a hearing on the merits; and it distinctly held that:

> “A prohibitory writ having issued, restraining a party from obstructing the exercise of a right, the obstruction may be commanded to be removed because its continuance effects the very injury he was prohibited from effecting.”

In State ex rel. Yale et al. v. Judge, 41 La. Ann. 516, 6 South. 512, it appeared that J. E. St. Martin had obtained an injunction prohibiting the relators from operating a draining machine which threw drainage from their plantation upon his, and that relators obtained the dissolution of the writ on giving bond; that St. Martin built a levee in front of the machine, thereby destroying the effect of its operation; that relators thereupon applied for a prohibitory injunction restraining St. Martin from disturbing them in the free enjoyment of the right of drain through his plantation, and for a mandatory injunction or order commanding

the sheriff to remove the obstructing levee,, which applications were denied, whereupon relators applied to this court for a writ of mandamus, which was granted, directing the judge to issue the writs as prayed for.

After • referring to the prohibitory injunction as falling under O. P. 298, “and others similar,” the court said as to the duty of the trial judge in the premises:

> “Therefore, as to this part of the relief asked his absolute duty to grant it was beyond dispute.”

And the opinion proceeds:

> “We consider that the additional order prayed for to remove the levee which operates the disturbance was a natural and necessary corollary * * * of the injunction against disturbance. The law in express terms authorizes the injunction when ‘the defendant disturbs the plaintiff’ in the possession of his real right. It is granted as a remedy for actual, as well as threatened, disturbance. It contemplates an effective relief, and manifestly the injunction would be brutum fulmen if the obstruction, * * * complained of and enjoined were permitted to remain and thus to paralyze its effect and to perpetuate the disturbance which the injunction forbids. The case is on all fours with that of McDonogh v. Calloway, 7 Rob. 442.”

In Rice Milling Co. v. Romero, 105 La. 439, 29 South. 876, plaintiff complained that defendant had dammed its irrigating canal, and prayed for an injunction, prohibitory and mandatory, which was issued accordingly, and obeyed. As part of his defense, defendant urged that the mandatory injunction should not have issued until after a hearing on the merits, but this court said:

> “The injunction was issued on June 18, 1900, and, as the case is yet to be disposed of, it is evident that, if the rule invoked had been applied, the injury which the mandatory order was intended to ward off (i. e., the destruction of the crops, which were dependent upon the dammed up water), would long since have been sustained.”

And the writ was sustained.

In 22 Cye. p. 742, we find:

> “2. * * ***And a mandatory injunction may be granted although the act causing the injury has been completed before the suit is *1064brought. The complainant may by this means be put in statu quo. * * * Where defendant has fully completed the act sought to be restrained, after the filing of the bill but before the issuance of any order or decree, the court has power to compel, by mandatory injunction, the restoration of the former condition of things.”

Plaintiff herein having been in possession for more than a year of the land upon which its spur track is built, and its possession having been disturbed by defendants, the matter of the issuance of the prohibitory injunction was not within the discretion of the district court, but was compulsory (State ex rel. Yale et al. v. Judge, supra), and the court was as much bound to maintain and enforce as to issue it; the manner in which that may be done being prescribed by law. Article 308 of the Code of Practice (as amended and re-enacted by Act 77 of 1896) provides that:

> “ * * * The court may either cause to be destroyed whatever may have been done in contravention of the injunction, if it be practicable, or they may punish him by an imprisonment not exceeding ten days, but which may be repeatedly inflicted, until the party obeys the mandate of the court.”

And article 636 provides that:

> “When the judgment orders * * * the doing * * something specified in it, if the party condemned, on demand made by the sheriff that he shall comply with it, refuses or neglects to do so, * * * the party in whose favor the judgment was rendered may obtain, on motion, an order to distrain all the property movable and immovable of the party in default, until he shall have fully satisfied the judgment.”

[6] The judge a quo must have found that defendants had disturbed the status intended to be preserved by his prohibitory injunction, and, having imposed a fine upon the defendant company for its disrespect in failing to obey that writ, he should, we think, have gone farther and ordered the defendant company and its president, through whom it acted, and to whom also the writ was directed, to restore matters to the condition in which they were when the writ was issued, at least to the extent of the disturbance for which they were responsible. It may be, however, that, though he heard the witnesses testify, he was uuable to determine, with reasonable certainty, the character and extent of what we may call the depredation committed by - the defendants, which they should be compelled to repair. At all events, having only an exceedingly imperfect report of the testimony to rely on, we find ourselves in that dilemma, and have concluded to remand the case in order that the facts may lie more intelligibly presented, and a basis thereby established upon which to rest a definitive judgment. As to defendant’s foreman (Blackman), it would probably be out of his power to obey an order such as plaintiff prays for; but if he knew that the injunction was pending, whether it was served on him or not (which we are inclined to think was the case), some effective action should be taken to compel him to respect it, since plaintiff is entitled, for the protection of its rights, to something more than an empty order which no one is compelled to obey, and a court of justice, for its own credit and the credit of the state, should make no order which it is unwilling to enforce to the extent of its power.

Eor the reasons thus assigned, it is ordered and adjudged that the judgment appealed from be set aside in so far as it rejects the application of the plaintiff for a mandatory injunction, and that the case be remanded to the district court for such evidence as the parties may see fit to offer as to any acts committed by the defendant company, its officers, agents, or employes, on and after July 1, 1912, which may have damaged plaintiff’s right of way, roadbeds, or tracks, and as to the character and extent of such damage. It is further decreed that the defendant company and F. H. Drake pay all costs.