#### CRAVER, Appellant, *v.*STAPP, Respondent.

(No. 1,700.)

(Submitted January 27, 1902.

Decided February 24, 1902.)

*Interlocutory Injunction*— Dissolution — *Appeal*— Evidence— *Sufficiency.*

Evidence on which a temporary injunction is dissolved will be held sufficient to sustain the order of dissolution on appeal, where no abuse of discretion is shown, even though it would not authorize a denial on final hearing of the relief demanded in the bill.

*Appeal from District Court, Beaverhead County; M. H. Parker, Judge.*

INJUNCTION by Plora E. Craver against I. B. Stapp'. Prom an order dissolving an interlocutory injunction, tbe plaintiff appeals.

Affirmed.

*Mr. John Q. Willis*and *Mr. Edwin. Morris,*for Appellant.

Subdivision II, Sec. 871, Code of Civil Procedure, provides for tbe granting and issuance of an injunction where great or irreparable injury would result. It might be argued that the-acts of tbe respondent were only trespasses and an action at law7 would be tbe proper remedy. Trespasses, where frequent, wanton or continued, will be restrained where the injury is great or irreparable, or tbe defendant is insolvent. (Lee v. *Watson,*15 Mont. 228; *Derry*v. *Boss,*5 Colo. 295; *West*v. *Smith,*52 Cal. 322; *Long*v. *Casebeer,*28 Kan. 226.)

Injunction will lie to restrain tbe removal of tbe plaintiff’s crop by an insolvent defendant. (Lee v. *Watson, supra; Ilicks*v. *Compton,*18 Cal. 206; *West*v. *Smith,*52 Cal. 322, *supra; Bohrer*v. *Babcock,*114 Cal. 126.)

Some of tbe 'older decisions go to tbe extent of bolding that so long as a plaintiff has any remedy at law whatever, no recourse can be bad to equity. Such is not tbe effect of tbe later *315decisions. *{Staples*v. *Rossi et al.,*65 Pac. Pep. 67; *King*v. *Stewart,*84 F'ed. 546; *King*v. *Campbell,*85 Fed. 814; *Watson*v. *Sutherland,*5 Wall. 74.)

Where the injury to the defendant from the temporary injunction would be less than the injury to the plaintiff, should the plaintiff succeed, the injunction should be granted. *(Gil-pin*v. *Mining Co.,*23 Pac. Pep-. 547; *Staples*v. *Rossi, supra-.')*

*Mr. W. S. Barbour*and *Messrs. Pemberton & Maury,*for Pespondent.

Where there is a conflict of evidence, the granting or dissolving of an injunction, being so much in the discretion of the lower court, the supreme court will never disturb its action. *{Ileinze*v. *B. & M. Company,*20 Mont. 531; *Red Mountain M. Co.*v. *Ester,*18 Mont. 176; *Anaconda C. M. Company*v. *B. & B. M. Company,*17 Mont. 521; *Cotter*v. *Cotter,*16 Mont. 63; *Boyd*v. *Desrozier,*20 Mont. 449; *Combers*v. *Lowry,*21 Mont. 481, and numberless other cases of the supreme court of Montana.)

The granting or dissolving of an injunction is so largely within the discretion of the lower court, that the supreme court will never disturb its action, unless there has been a manifest-abuse of discretion. *{Ileinze*v. *B. & M. Company,*20 Mont. 531, and cases there cited.)

MP. JUSTICE PIGOTT

delivered the opinion of the court.

On June 12, 1901, upon the verified complaint on file in the action, the judge at chambers made an interlocutory injunction order restraining the defendant from interfering with land upon which the plaintiff alleged she had entered under the Desert- Land Act of Congress, and from occupying or using it, and requiring the'defendant to remain away from the land. On the 27th day of June the defendant moved the court to- dissolve the injunction. The hearing was had on the complaint, answer, and affidavits. On July 9 the judge below ordered the *316injunction dissolved, and tbe plaintiff bas appealed from tbe order of dissolution.

It is argued by tbe defendant that tbe complaint does not state facts sufficient to warrant tbe granting of tbe injunction, but that if it does, tbe evidence received upon tbe bearing was sufficient to justify tbe order of dissolution. We shall not consider the question of the sufficiency of tbe complaint to support the interposition of equity by way of injunction process, for on tire present appeal we need go- no further than to inquire whether, upon tbe evidence received at tbe bearing, tbe judge manifestly abused bis discretion in dissolving tbe order of June 12. It does not so appear, and upon tbe authority of the numerous cases to that effect decided by this court, tbe order appealed from must be affirmed.

We do'not decide whether tbe evidence would, if received on a trial of tbe merits, be sufficient to support a perpetual injunction or to defeat tbe plaintiff. No opinion is intimated upon this question. That which suffices to sustain an interlocutory' injunction or to justify its dissolution, does not always suffice upon a final trial of tbe issues. *(Maloney*v. *King,*25 Mont. 188, 64 Pac. Rep. 351.)

The order is affirmed.

*Affirmed.*