Elliot v. Whitmore

37 P. 459, 10 Utah 238, 1894 Utah LEXIS 37

• Court: Utah Supreme Court
• Decided: June 19, 1894
• Docket: No. 416
• Status: Published

Opinions

Merritt, C. J.:

This is an appeal from an order of the Third District Court refusing the application of the defendants to fix the amount of the supersedeas bond to be given to stay the judgment on appeal from the final decree, and denying a. stay of proceedings upon the in junctional order contained in said decree. The complaint in this action was filed in the First District Court at Provo, September 8, 1887, and •averred that defendants were entitled to a primary right-to the waters of Grassy Trail creek, to a certain amount;, that the plaintiff, in 1885, appropriated to his own use-certain amounts of water from said creek, in excess of the-amount conceded to defendants, and that he was the owner-of such excess by prior appropriation; that defendants had, in violation of plaintiff’s rights, taken possession of all the-waters of said. stream, and, “ by means of dams, flumes,, and ditches theretofore dug and made, unlawfully diverted, all of the waters of said creek from the channel thereof,, and from plaintiff, and refuses to allow the same or any part thereof, to flow down to or on his said land;” and that defendants threaten to continue such diversion and appropriation unless restrained, — and prays for an injunction, and that the same may be made perpetual enjoining such diversion by defendants. The answer admits the taking of the water, but denies any appropriation by plaintiff, and asserts title to the entire stream in the defendants.

The case has been once before this court (Elliot v. Whitmore, 8 Utah, 253, 30 Pac. 984); and, upon being remanded to the district court, was sent to a referee for trial, who filed his report, in which he finds that the defendants are entitled to a first right in the stream to the amount of 67-150 of a cubic foot per second, and the plaintiff to a right thereafter to 5 cubic feet per second at his head gate, some distance below the premises of defendants; and that the defendants have been and are taking the whole of the waters of the stream; and that a certain device or box presented by plaintiff should be put into defendants' ditch, which would prevent any greater amount of water from flowing therein than the amount awarded to them; and that a competent engineer should be appointed to put the said device into defendants' ditch; and that defendants should be enjoined from disturbing said device, and from taking more water than the amount awarded to them. On the 8th of May, 1893, an order was made confirming said report, and a final judgment was entered pursuant thereto, appointing ~W. P. Hardesty a commissioner to put in said device, and directing him to proceed and put in said device, and enjoining defendants from interfering therewith when put in, or from taking from the stream more water than the amount awarded them by the decree, and awarded costs against the defendants, taxed at the sum of $1,762.65. Thereupon the defendants, desiring to appeal from said judgment to this court, made application, to the court, under 2 Comp. Laws, § 3641, to fix the amount of a supersedeas bond to stay the execution of the judgment pending the appeal; and upon such application the court entered an order “that the amount of the bond in this action be fixed at the sum of $3,243.20, double the amount of judgment in this action; and that any stay of proceedings upon the injunctional order contained in the decree in this action, or any suspension of said injunctional order, be, and the same is hereby, refused and denied, and the said injunctional orders in the said decree contained are continued in full force and effect.” From this order this appeal is taken.

The subject-matter of the controversy in the original action is real property. Fritts v. Camp, 94 Cal. 393, 29 Pac. 867; Pacific Yacht Club v. Sausalito Bay Water Co., 98 Cal. 487, 33 Pac. 322. The statute under which defendants made the application to fix amount of supersedeas bond provides that, if the judgment or order appealed from directs the sale or delivery of possession of real property, the execution of the same cannot be stayed unless a written undertaking be executed on the part of the appellant, with two or more sufficient sureties, in an amount not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered, which must be specified in the undertaking, etc. Section 3642 provides that, “whenever an appeal is perfected as provided in the preceding sections of this chapter, it stays all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein.” If the judgment or decree from which defendants were seeking to appeal was, in effect, for the delivery of possession of real property, then they were entitled to have the judgment stayed pending the appeal; and it was the duty of the court to fix the amount of the bond for that purpose. The defendants were in possession of the stream, and the provision in the judgment that the defendants should refrain and desist from taking it was., in effect, a judgment that they deliver it to the plaintiff; the judgment directed a commissioner to go and turn it over, and deliver it to the plaintiff.

An appeal does not ordinarily.supersede or suspend an injunction, but this rule is only to preserve the status quo of the property at the time the decree is entered. Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136; People v. Simonson, 10 Mich. 335; Calvert v. State, 34 Neb. 631, 52 N. W. 687; Bullion, Beck & Champion Min. Co. v. Eureka Hill Min. Co., 5 Utah, 182, 12 Pac. 660. If the injunction is mandatory, its effect is to take the subject-matter of the'controversy from the possession of one party, and give it to the other; the rule has no application. Bliss v. Superior Court, 62 Cal. 543; Mining Co. v. Fremont, 7 Cal. 130. In the case of Bliss v. Superior Court, McKee, J., speaking for the court, says: “It is only of orders or judgments which command or permit some act to be done that a stay of proceedings can be had.” And in the case of Mining Co. v. Fremont the court points out the distinction between mandatory and prohibitory judgments and orders. In the case at bar the defendants were in possession at the time the decree was entered. The effect of the decree was to take the property in dispute from them, and deliver it to plain tiff „ In fact, a commissioner was directed to make the delivery. The order appealed from should be reversed and set aside; and as the defendants have perfected their appeal, so far as they could, which is now pending in this court, the cause should be remanded to the court below, with instructions to fix the amount of supersedeas bond on appeal from the judgment.'