#### R. D. CAMPBELL, Appellant, v. JAMES N. CAMPBELL, A. Flath, M. G. Flath and James C. Angle. M. G. FLATH, Respondent.

(225 N. W. 805.)

*245Opinion filed June 5, 1929.

*F. W. Medbery,*for appellant.

*F. F.*Wyckoff, for respondent.

*246Nuessle, J.

On August 2nd, 1928, the plaintiff brought an action to quiet title to certain real property, to wit, a lot in the city of Stanley, North Dakota. The complaint was in the statutory form (Comp. Laws 1913, § 8141). At the same time she made application, based upon a showing by affidavit, for a temporary order restraining the defendants M. G-. Elath and A. Elath from removing a certain building from the real estate in question and for an injunction pendente lite to like effect. The court granted a temporary restraining order and issued an order directed to the defendants to show cause why the injunction pendente lite should not be granted. The order to show cause was made returnable on August 7 th. On the return day the defexidant, M. G. Elath, made showing by affidavits in resistance of the plaintiff’s application and the plaintiff also made a further showing by affidavits. The affidavits recite in behalf of the plaintiff that she is the owner of the real estate in question; that she became such by purchase of the property from the county of Mountrail in June, 1928; that the. county had obtained title through sale of the property for the taxes for the years 1920 to 1921 inclusive; that these taxes were assessed and levied against the property considering the building thereon as a part of the realty; that the plaintiff paid therefor the sum of $546.57, approximately the market value of the property including the building; that this building was a small frame building worth approximately $300; that it was affixed to the realty; that the plaintiff bought the property in good faith believing that the building in question was a part of the realty and that she was getting title thereto; that the property is located *247in tbe business portion of tbe city of Stanley;' that tbe defendant, M. G. Flath, is about to remove tbe building under a claim of ownership; that under an ordinance of tbe city of Stanley it will be impossible to replace it if removed. Tbe defendant, M. G. Flath, as a showing of cause why tbe application for in junctional relief should not be granted, set up that be was tbe owner of tbe building in question; that- be moved tbe same onto tbe real estate in 1916'under an agreement with tbe owners of tbe property whereby be retained ownership of such building; that the building was not affixed to tbe realty but was placed upon skids on which it was moved to the lot and was raised from tbe ground by sticks and stones placed under these skids; that tbe owners of tbe lot in question were and since 1913 bad been tbe defendant James M. Campbell and tbe defendant A. Flath; that James M. Campbell is tbe husband and agent of tbe plaintiff; that M. G. Flath at all times since moving tbe bouse upon tbe real property has considered it as personal property and listed tbe same for taxation as such with tbe city assessor of tbe city of Stanley and has been asséssed for and paid tbe taxes thereon; that tbe defendant James M. Campbell, one of tbe eo-owners of tbe said real estate, knew of bis ownership of the said bouse and of the agreement and understanding whereby be was to have tbe right to remove it from tbe lot; that James M. Campbell acted as tbe agent of tbe plaintiff when be bought tbe real property in question for her from tbe county of Mountrail and at that time knew of tbe defendant’s claim of ownership of the building in question. Tbe pl-aintiff also filed counter-affidavits denying any knowledge on her part of M. G. Flath’s ownership of tbe building or of any arrangement whereby be might remove tbe same from tbe real property, and further denied that tbe building bad been assessed as tbe personal property of M. G. Flath or that he bad paid taxes thereon.' At tbe bearing on tbe return day tbe court considered tbe showing as made by tbe respective parties and thereupon vacated tbe temporary order theretofore issued, denied tbe plaintiff’s application for an injunction pendente lite, and adjudged costs on tbe application, in favor of tbe defendant M. G. Flath and against tbe plaintiff. Tbe plaintiff thereupon perfected tbe instant appeal.

The application for tbe restraining order was made under tbe provisions of §§ 7528, et seq. Comp. Laws 1913. Whether or not in-*248junctional relief should be granted in sucb a case was a matter within the sound legal discretion of the trial court. Bartles Northern Oil Co. v. Jackman, 29 N. D. 236, 150 N. W. 576; 32 C. J. 29; Sand v. Peterson, 30 N. D. 171, 152 N. W. 271. On this account and aside from -and without considering the other points raised, it seems to us that the order must be affirmed. Presumptively the trial court’s discretion was properly exercised and his action will not be disturbed unless there was an abuse of discretion on his part. Baird v. Unterseher, 57 N. D. 885, 224 N. W. 306, and cases cited. There is nothing in her complaint to indicate that the plaintiff demands or is entitled to injunctional relief. Her application is grounded wholly on her showing by affidavit. Defendant likewise by affidavit controverts her showing and sets up additional matters in resistance of the application. The trial court as indicated by his order considered the whole showing ns thus made, resolved the controverted matters in favor of the defendant and denied the application. In our judgment the plaintiff has not established any abuse of discretion on the part of the trial court in so doing and the order from which the appeal was taken must therefore be affirmed.

BuRKE, Ch. J., and Burnt, Bibdzell, and CheistxaNSON, JJ., cur. con-