The daily Minnesota pioneer. [volume] (St. Paul, Minn.) 1854-1855, 1854-11-13

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lthe consequences to him, are irrepai1ble
/ There i some unnecessary rpee foR both
/ in the complaint and answer, and TIE latter is
! apsn some points evasfve and unsatisfactory 3
but it does not appear from the whole answer
that this is intentional, and upon the points on
which 1 think the motion turns, ID 10 taaa and
positive. have cndeavOred to state enough
both of the complaint and answer to show the
reason for the disposition which l shall make
of the motion.
'Tte facts, in short, are these. !: A stream of
water, called "mill'creek,' deep enough to fioat
mill LOGS. runs in q southerly direction to the
Mississippi river. The defendant, Dayton, was
the original owner of the hnd in question on
both sides of the creek to its mouth. In May,
1852, Dayton conveyed part of this land to
the plaintiffs by deed, and on the same day con-
veycd another portion to them by lease. Sub
seauent to the above cOnvcyances, the defen-
dant, Dayton conveyed to the defendant, San
ford, lot of land on said creek, south of, and
adjoining the land which was decided by Day
ton to the plaintiffs. The question at issue be-
tween the parties is, as to the proper construc-
tion of the lease and where the leased premises
are situated the complaints cCntending that
they lie south of, and adjoining the lot decided
to them and extend to the Mississippi river,
and the defendants contending that they lie
wholly north of the same.
This is not material, except that in connec-
ton with the fact appearing in the answer that
an appeal has been taken, it seems to show that
there is question still at issue between the
parties as to their legal rights. o'r.
The Injunction in this case was granted upon
the showing 10y the complaint that the ques-
ton of right to the premises had been fully
adjusted and settled IN faror Of plaintiffs and
that the acts Of the defendants acere arork'ng ~
reparable injury to the plaintiffs.
This is good cause for an injunction.
Livingston Us. Livingston 9th Johns. Oh.
Reps 497 jerome IS. Ross, 18th Johns. Oh,
Reps. $50. land the eases therein cited. y
Stevens rs. Buchanan, list Johns. Oh. Reps. BIT
Waterman's Eden OF 1njunctons, vol. 2, notes
F on pages 200 ct seq. and pages 326 to 237.
But the answer alleges that the question of
f right is still pending and undetermined, and
denies that the plaintiffs have suffered any in
!, jury or will suffer any, by the acts Of the de-
PENDANTS complained Of rs e.
Every fact upon which special injunction
can be sustained, is fully and positively denied.
, The answcr;in substance admits that the plain
tiffs have right to use said creek in common
with the defendants for the purpose of floating
, logs, but denies that the defendants, either
have used, or intend to use it in a manner to
interfere with or Obstruct the business of the
plaintiffs, or that the plaintiffs have received,o
, will receive, any damage in consequence OF the
acts complained of. r.f 'f-.t -
They allege that to restrain them by contin-
uing the injunction, from using it at all, will
impose upon them irreparable injury
This seems to me such denial of the equity
| of the complaint as call for dissolution Of the
, injunction. ~
, The facts in this case, as they may gathered
from the entire complaint and answer, especi
ally as explained by the counsel for each of the
: parties, are not of II character to justify con
| tinuance of this injunction without, disregard
| ing the we'll settled law upon the sub cct.
Each party has mill upon the creek, ant
each party equally requires the use of the crecl
:, for running logs to their mills. 1t is dcniet
in the answer that the ordinary use of it by
one party in n reasonable manner will be in
, furious to the other party; and | am free t.
say that do not perceive from anything ap
pcaring in the ease. why the temporary use o
the creek il common, Latween the parties, vii
operate injuriouSly to the compainants. -,
If refuse this motion, the defendants bust
ness is totally sacrificed during the continuance
/ of the injunction While, if allow it, boil
, parties, as it seems to Fac, MAY pursue thel
, business without rulinous injury TO either.
: Injunctions to restrain treslass are imposes
:, and continued with great caution, and neye
! except when tic remedy at law is exhausted o
,, the injury will he irreparabie. o -...-..'ap
= See case before cited, and partfca,arly dc
romes Us. Ross, 18th Johns. Oh. Rep. $780,
See also, Olmstcd ct al. Us. LOOMS ct AL, 6tl
!. Johns Rep. 1872; also, 5th Met. ll8, and 4tl
Paige's Oh. Rep: Ill. .,rE7
In this case it is not evident that either o
, the foregoing reasons exists, as has alread.
,, been stated, they are both denied by the an
swer, and to some extent the answer is sus
! tanned by the positive facts in the case whcl
! are not disputed. --..-
! 1t is true that this court has once decides
that the title to the disputed premises was il
: the plaintiff; but it appears from the answe
o that an appeal from the ruling Of the court il
. that case has been taken, and that the actor
= is still pending in the Supreme Court; and til
! defendants deny that they have had an oppor
! tunity to be heard upon the merits OF the ques
ton atissue
8 1t would be an extraordinary assumption Q
= discretionary power, for me to decide that thi
6 portion of the answer is not true, and to dis
o pose of the motion as if no question OF it'll
- existed. The defendants cannot be treated II
o a matter of this kind as wilful treSpasser
n merely, while the only action which has bee
y tried upon its merits, assuming that the on
= above referred to has been SO tried.) is still
4 pending in court. a.. r-...
! 1t is said by the plaintiffs, that an attemp
i to obtain a remedy 10y actions at law for tres
n pass, would lead to great and ruinous multi
plcity of suits. This may be true, but it
s not legal presumption under the circumstar
! ccs of this case.
o If the injury complained of was of char
). actcr which would be irreparablc, differen
! view would be taken but the answer dene
> it, and l think with good reason.
:, unrr careful examination of the anfhnr