HamxltoN, Judge,
delivered the following opinion:
Before discussing the merits of'the case, it is necessary to consider preliminary objections as to parties and the nature of the relief sought.
1. It is alleged by the respondents that they own only the reversion of one half of the property, and that the other owners are not yet made parties. Equity rule 73 is invoked to show that notice of an application for preliminary injunction must be given to the opposite parties. It does not seem, however, that this is applicable. In some cases a preliminary injunction could not be obtained in time to do any good if the plaintiff had to wait for absent defendants to be brought in by publication. The rule must be construed as relating to parties who are in court. And, moreover, the parties who are in court seem to [647] be tbe substantial defendants. Defendant Parra may not be an owner, but be is a proper, if not a necessary, defendant in that he is the active representative of the absent defendants, is in the actual control of the properties to which it is alleged the water is being diverted, and is the very person by whom the obstructions complained of were placed in the Jacaguas river, which resulted in the diversion of the water. The office of a preliminary injunction is to preserve the status quo until the court may grant permanent relief upon the final hearing. It does not appear that anything except a continuation of the alleged injury will be effected by waiting until other defendants are made parties.
2. The same is true of the contention that the People of Porto Rico or the Commissioner of the Interior should be named as a party defendant. The People of Porto Rico have been held in civil cases to be quasi sovereign so far as concerns process of courts, and a delicate question would arise as to making them a party. It is probably true that the same result would follow in making the Commissioner of the Interior a party, inasmuch as he would come in in a purely representative capacity as representing the People of Porto Rico. However this may be, it is not necessary. The plaintiff has or has not certain rights under its contract with the People of Porto Rico, and these rights will or will not be enforced, as the case may be. The People of Porto Rico have not put obstructions in the Jacaguas river or rebuilt intakes in such a manner as to take off water which belongs to the plaintiff. The People of Porto Rico have authorized the defendants so to do, but the act of the defendants was their act alone. Whether they can call on the People of Porto Rico to defend the suit is a matter which does not at [648] present arise. Somewhat the same question was presented in the suit of Insular Dock Co. v. P. J. Carlin Constr. Co. ante, 24, where conflicting contracts had been made by the Secretary of War. It was there held that it was a question of existing rights, regardless of the source from which those rights were obtained, and that litigation should proceed between the private parties claiming those rights. While not the same, it is not unanalogous to a case where legal rights are derived directly from the government, as in the case of conflicting patents. The litigation here, however, is not between a party and the government, but between the individuals having the conflicting claims. There is no reason in such case for joining the government as a party, even if the government were subject to suit. If the government should seek to intervene, its application would be carefully considered.
3. The object of the bill in this cause is to restrain certain acts which are alleged to result in irreparable damage to the plaintiff. The damage complained of is injury to plaintiff’s growing sugar cane, upon which depends the value of the property involved in this litigation. Theoretically it might be possible to compensate the plaintiff for such loss by the payment of money, but practically it is not possible to do so. Almost all property in the world can be estimated in money value, but this does not change the fact that for all practical purposes damage to property sometimes is irreparable in the eye of the law. Where the main object of its use is prevented the damage may well be irreparable.- Where there will be a destruction of the element which makes the property of value, the damage will be irreparable. California Pastoral & Agri. Co. v. Enterprise Canal & Land Co. 127 Fed. 741. In the case at bar the land [649] obtains its value from tbe raising of cane for tbe manufacture of sugar, wbicb is tbe main industry of Porto Pico, and apparently tbe sole industry of tbe plaintiff. Tbe business interrelations growing out of tbe sugar industry, both as to colonos and employees on tbe one side, and as to American and other business bouses to whom tbe product is to be shipped on tbe other, make up, a commercial network, for whose breaking tbe courts would be powerless to estimate and award damages. This constitutes irreparable damage in tbe eye of tbe law. In tbe case at bar tbe answer does not expressly deny this allegation of tbe bill; but by setting up that tbe same injury will accrue to tbe defendants by similar deprivation of water, it practically admits tbe claim of tbe plaintiff that tbe same result will accrue to itself.
All that is needed for a preliminary injunction is to satisfy tbe court that a cause of action exists, and that irreparable injury will result unless tbe preliminary injunction is granted. Irving v. Joint Dist. Council, U. B. C. & J. 180 Fed. 896, 900; Barrett v. New York, 183 Fed. 793, 799. While a preliminary injunction should be cautiously used, it should not be withheld when in tbe exercise of a sound judgment it is necessary to prevent injustice. Continuous Glass Press Co. v. Schmertz Wire Glass Co. 82 C. C. A. 587, 153 Fed. 577, 578. A preliminary injunction rests largely within tbe sound discretion of tbe trial court, especially where tbe defendant can be fully protected against loss by a bond to be given by tbe plaintiff. Railroad Commission v. Texas & P. R. Co. 75 C. C. A. 226, 144 Fed. 68, 73.
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HamxltoN, Judge,
delivered the following opinion:
Before discussing the merits of'the case, it is necessary to consider preliminary objections as to parties and the nature of the relief sought.
1. It is alleged by the respondents that they own only the reversion of one half of the property, and that the other owners are not yet made parties. Equity rule 73 is invoked to show that notice of an application for preliminary injunction must be given to the opposite parties. It does not seem, however, that this is applicable. In some cases a preliminary injunction could not be obtained in time to do any good if the plaintiff had to wait for absent defendants to be brought in by publication. The rule must be construed as relating to parties who are in court. And, moreover, the parties who are in court seem to [647] be tbe substantial defendants. Defendant Parra may not be an owner, but be is a proper, if not a necessary, defendant in that he is the active representative of the absent defendants, is in the actual control of the properties to which it is alleged the water is being diverted, and is the very person by whom the obstructions complained of were placed in the Jacaguas river, which resulted in the diversion of the water. The office of a preliminary injunction is to preserve the status quo until the court may grant permanent relief upon the final hearing. It does not appear that anything except a continuation of the alleged injury will be effected by waiting until other defendants are made parties.
2. The same is true of the contention that the People of Porto Rico or the Commissioner of the Interior should be named as a party defendant. The People of Porto Rico have been held in civil cases to be quasi sovereign so far as concerns process of courts, and a delicate question would arise as to making them a party. It is probably true that the same result would follow in making the Commissioner of the Interior a party, inasmuch as he would come in in a purely representative capacity as representing the People of Porto Rico. However this may be, it is not necessary. The plaintiff has or has not certain rights under its contract with the People of Porto Rico, and these rights will or will not be enforced, as the case may be. The People of Porto Rico have not put obstructions in the Jacaguas river or rebuilt intakes in such a manner as to take off water which belongs to the plaintiff. The People of Porto Rico have authorized the defendants so to do, but the act of the defendants was their act alone. Whether they can call on the People of Porto Rico to defend the suit is a matter which does not at [648] present arise. Somewhat the same question was presented in the suit of Insular Dock Co. v. P. J. Carlin Constr. Co. ante, 24, where conflicting contracts had been made by the Secretary of War. It was there held that it was a question of existing rights, regardless of the source from which those rights were obtained, and that litigation should proceed between the private parties claiming those rights. While not the same, it is not unanalogous to a case where legal rights are derived directly from the government, as in the case of conflicting patents. The litigation here, however, is not between a party and the government, but between the individuals having the conflicting claims. There is no reason in such case for joining the government as a party, even if the government were subject to suit. If the government should seek to intervene, its application would be carefully considered.
3. The object of the bill in this cause is to restrain certain acts which are alleged to result in irreparable damage to the plaintiff. The damage complained of is injury to plaintiff’s growing sugar cane, upon which depends the value of the property involved in this litigation. Theoretically it might be possible to compensate the plaintiff for such loss by the payment of money, but practically it is not possible to do so. Almost all property in the world can be estimated in money value, but this does not change the fact that for all practical purposes damage to property sometimes is irreparable in the eye of the law. Where the main object of its use is prevented the damage may well be irreparable.- Where there will be a destruction of the element which makes the property of value, the damage will be irreparable. California Pastoral & Agri. Co. v. Enterprise Canal & Land Co. 127 Fed. 741. In the case at bar the land [649] obtains its value from tbe raising of cane for tbe manufacture of sugar, wbicb is tbe main industry of Porto Pico, and apparently tbe sole industry of tbe plaintiff. Tbe business interrelations growing out of tbe sugar industry, both as to colonos and employees on tbe one side, and as to American and other business bouses to whom tbe product is to be shipped on tbe other, make up, a commercial network, for whose breaking tbe courts would be powerless to estimate and award damages. This constitutes irreparable damage in tbe eye of tbe law. In tbe case at bar tbe answer does not expressly deny this allegation of tbe bill; but by setting up that tbe same injury will accrue to tbe defendants by similar deprivation of water, it practically admits tbe claim of tbe plaintiff that tbe same result will accrue to itself.
All that is needed for a preliminary injunction is to satisfy tbe court that a cause of action exists, and that irreparable injury will result unless tbe preliminary injunction is granted. Irving v. Joint Dist. Council, U. B. C. & J. 180 Fed. 896, 900; Barrett v. New York, 183 Fed. 793, 799. While a preliminary injunction should be cautiously used, it should not be withheld when in tbe exercise of a sound judgment it is necessary to prevent injustice. Continuous Glass Press Co. v. Schmertz Wire Glass Co. 82 C. C. A. 587, 153 Fed. 577, 578. A preliminary injunction rests largely within tbe sound discretion of tbe trial court, especially where tbe defendant can be fully protected against loss by a bond to be given by tbe plaintiff. Railroad Commission v. Texas & P. R. Co. 75 C. C. A. 226, 144 Fed. 68, 73.
4. Tbe preliminary injunction sought in this case is of tbe class known as mandatory; that is, it would command tbe de[650] fendants to undo something that they bad done, to restore tbe water user to wbat it was before they made tbeir improvements at tbeir own intakes. Ordinarily preliminary injunctions are preventive. Mandatory injunctions are seldom allowed before a final bearing. Corning v. Troy Iron & Nail Factory, 40 N. Y. 191. Nevertheless mandatory injunctions are sometimes granted, and indeed tbe term applies more especially to interlocutory injunctions. Where by final decree matters are restored to tbeir original status, it is more properly called an abatement than an injunction. A mandatory injunction resembles in effect tbe restorative interdict of tbe Roman law, and is used where the injury is immediate, pressing, irreparable, clearly established by tbe proofs, and not acquiesced in by tbe plaintiff. Preliminary mandatory injunctions have been granted more freely by tbe English than by tbe American courts, but they will be granted if they administer proper preventive relief. 3 Pom. Eq. Jur. § 1359. In Robinson v. Byron, 1 Bro. Ch. 588, Lord Tburlow granted a preliminary injunction restraining defendant from maintaining dams to prevent water from flowing to plaintiff’s mill as it bad done. This necessitated the removal of these dams. Tbe ruling American view on the subject is expressed by Mr. Circuit Judge Taft in Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L.R.A. 387, 5 Inters. Com. Rep. 522, 54 Fed. 730, a well-considered case arising out of the Debs strike of 1893. In that case (p. 741) be says: “The office of a preliminary injunction is to preserve tbe status quo until, upon final hearing, tbe court may grant full relief. Generally this can be accomplished by an injunction prohibitory in form, but it sometimes happens that the status quo is a condi[651] tion not of rest, but of action, and the condition of rest is exactly wbat will inflict the irreparable injury upon complainant, which be appeals to a court of equity to protect him from. In such a case courts of equity issue mandatory writs before the case is heard on its merits.” This point was taken by Lennon to the Supreme Court of the United States, and that court, through Mr. Justice Brown, said: “There could be no doubt of the power of the court to grant this injunction, which bore solely upon the relations of the railway companies to each other. It was alleged in the bill to have been a part of the regular business of the defendant roads to interchange traffic with the Ann Arbor road, and the injunction was sought to prevent an arbitrary discontinuance of this custom. Perhaps, to a certain extent, the injunction may be termed mandatory, although its object was to continue the existing state of things, and to prevent an arbitrary breaking off of the current business connections between the roads. But it was clearly not beyond the power of a court of equity, which is not always limited to the restraint of a contemplated or threatened action, but may even require affirmative action, where the circumstances of the case demand it. Re Lennon, 166 U. S. 548, 556, 41 L. ed. 1110, 1113, 17 Sup. Ct. Rep. 648.”
While a mandatory injunction may be less common, if appropriate to the facts of the case it will be granted. The point for consideration is less the form of the writ than the remedy called for by the facts of the case. A writ of this character was lately granted by this court in De Diego v. Rovira, 9 P. R. 17.
5. The sole object of an interlocutory injunction is to preserve the subject in controversy, and, without determining any questions of right, to prevent the further perpetration of wrong, [652] or any act whereby the right in controversy may be materially endangered. It cannot be used for the purpose of taking property out of the possession of one party and putting it in the possession of another, nor for ordering defendant to undo something apt to produce injury to the defendant, such as the plaintiff complains of having suffered. High, Inj. § 4. The object of a preliminary injunction is to prevent irreparable injury by preserving things in their existing condition or the condition which has been existing until disturbed by the defendant himself. Such an injunction will not be granted where it appears that the plaintiff’s right is not clear, and that there are substantive matters of defense which should not be tried on ex parte affidavits, especially if, as in the case at bar, the defendant is financially responsible. Paine v. United States Playing-Card Co. 90 Fed. 543. As it is sometimes expressed, the rule in the Federal courts is that a preliminary injunction will not be granted unless the papers present a clear case. Star Co. v. Colver Pub. House, 141 Fed. 129. The plaintiff must show that there is no doubt of the wrong sought to be enjoined, or that its claim of right has been long acquiesced in. 1 Foster, Fed. Pr. 3d ed. p. 498. The right must be clear and the facts definitely ascertained in order to justify a preliminary injunction. High, Inj. § 881.
6. The bill of complaint, which is sworn to' and supported by affidavits, alleges that the plaintiff had been long in the exercise of certain water rights, acquired by royal grant and by user, and that the contract with the People of Porto Pico of August 26, 1914, protocolized June 8, 1915, was merely designed to afford another method of the exercise of essentially the same rights. There is apparently no dispute as to the right of the [653] plaintiff to obtain certain fixed amounts of irrigation water through, its different intakes, and none of its right to receive also the occasional but important access of storm water, or torrential water, as it is called. The contest in this case relates to ¶ 3 of the contract, which is as follows:—
“Third. Fortuna estates is hereby granted the right while ‘ this agreement remains in force, to take, in addition to a-11 amounts of water above specified, from the Jacaguas river by pump at the said Aruz pumping station, water which may be available there for irrigation of any of its said lands, to the extent that such taking shall not deprive any owners or users of subsisting water rights or concessions upon the Jacaguas river of the water to which such owners or users may be entitled, either by virtue of such water rights or concessions or by virtue of any agreement or agreements in regard thereto entered into or to be entered into by them with the People of Porto Pico; Provided, however, that should the People of Porto Pico at any time undertake the development and utilization of the surplus waters of this part of the Jacaguas river, this right shall be understood to be limited to a maximum usage of 3.86 second feet.
“The Fortuna estates shall maintain at the said Aruz pumping station an accurate and appropriate measuring device for the measurement of the water taken from the river at such station, which shall at reasonable time be subject to inspection by the properly accredited employees of the irrigation service.”
The plaintiff contends that, as the Irrigation Bureau has determined the maximum flow of this water does not exceed 2.50 second feet, while the contract expressly allows the plaintiff a maximum of 3.86 second feet, therefore the plaintiff is entitled [654] to all tbe surplus water in tbe river at tbis Aruz pumping station, and consequently to enjoin tbe defendants from taking any surplus water on tbeir part; and tbis even if tbe People of Porto Rico should “at any time undertake tbe development and utilization of tbe surplus waters of tbis part of tbe Jacaguas river,” wbicb it is not conceded tbe People of Porto Rico bave undertaken to do.
Tbe meaning of tbe clause, “water wbicb may be available there,” is one of tbe legal issues in tbis case, and need not now be determined. Tbe same is true of tbe question whether tbe rights of the parties are limited to the existing contracts with tbe People of Porto Rico, or are to be interpreted in tbe light of previous royal grants, concessions, and tbe user, which are so far not before tbe court. These are questions upon the merits, which cannot and need not be determined at present. A probable right and probable danger that tbe right would be defeated is all that need be shown as a basis for preliminary injunction. Colorado Eastern R. Co. v. Chicago, B. & Q. R. Co. 73 C. C. A. 132, 141 Ped. 898, 901. It is not necessary for the court to be certain that complainant is entitled to .a final decree before it will grant a preliminary injunction. Central of Georgia R. Co. v. Railroad Commission, 161 Fed. 925, 992. Tbe court will not refuse a preliminary injunction if its grant would seem to determine the main legal issue of tbe case. Minneapolis General Electric Co. v. Minneapolis, 194 Fed. 215. Tbe court will not pass upon the merits of the case when provisionally presented upon a motion for preliminary injunction, if there is enough otherwise before tbe court to determine tbe injunction question.
7. The Jacaguas river, about which this controversy binges, [655] is a stream rising in the mountain ranges, running east and west in Porto Pico and flowing southwardly to the Caribbean Sea. As with other rivers on the south side of the Island, however, its lower reaches are much of the time almost devoid of water. The climate south of these mountain ranges is very dry, and an elaborate system of irrigation by intakes for regular and excess water grew up in Spanish times. The cane lands lie between the mountains and the sea and have been dependent upon this water, now reinforced by the public irrigation service lately made effective by the Insular government. The new service is maintained under contracts between the local government and the different properties, sometimes entirely new, sometimes merely taking the place of the old concessionary rights, and sometimes, as in the case at bar, a combination of both systems. In order to prevent the lands higher up stream from absorbing all the water, there have to be careful regulations under both systems for the protection of the lower tenements. In the case at bar the Portuna lands are mainly on the west side of the Jaca-guas river, and the Boca Chica property on the east side. The canals conducting the Portuna water, however, in some- cases pass over-the bed of the river to their lands on the other side. All in all it makes up a very complicated system, and the rights involved have to be carefully studied in order to be properly guarded.
Prom the proof the court is satisfied that the plaintiff has been taking water for many years under its old concessions and user substantially as at present, and that the defendants’ use of the Maturi and San Pernando canals had for sometime been practically abandoned until the middle of 1915. Then at a meeting of the syndicate of owners of Jacaguas river water [656] lights .they obtained a right to use torrential waters. Such syndicates in Porto Pico take the place of the old Spanish, if not Moorish, water court, such as that which sat before the Cathedral in Valencia, as graphically portrayed in Vicente Blasco Ibañez’s “La Barraca.” In order to carry out this grant, defendants cleaned and enlarged their Maturi and San Fernando canals and intakes. As used, however, these were dependent upon a dam defendants built across the Jacaguas river, which after some controversy was abandoned because it took almost a third of the usual Jacaguas river water at that point and was not confined to torrential water. Instead the defendants purchased what was claimed to be surplus water from the irrigation service by a contract of December 15, 1915. This user it is which the plaintiff seems to show interferes with its own water rights, and for which it seeks the present injunction. Defendants at present obtain no water from this source, but that is because this is the dry season and the river does not rise high enough to supply such water. This will all change soon with the coming of the usual rains, and it is proper to adjust matters now. It is true the chief engineer of the irrigation service testifies that the water due the Aruz pump is now being delivered by the irrigation service at other points as agreed, but he states no facts to justify this conclusion. The court must decide only upon facts shown in evidence, and is satisfied that the old status quo has been and will be interfered with by the repair and extension work done by defendants to their intakes and canals.
If the defendants, under their irrigation contract, have now acquired rights which they did not have before, or if they had, by Spanish concession or otherwise, rights which they temporarily abandoned and nevertheless have a right to resume, they [657] will be sustained upon the hearing. This, however, is the issue in the case, and should not be determined except upon a full consideration. It would seem better to preserve the status quo until this can be had, even if it involves the temporary abandonment of the new user of water; but this should be done only upon a suitable bond being given by the plaintiff to pay the damages and costs of the defendants in case the right of the defendants should be determined to be superior. This principle is not unlike the frequent case of a restoration of the status quo in an action of unlawful detainer, although it often happens that, upon the trial of the right in ejectment, the defendant in the unlawful detainer suit may prevail on the merits. The proceeding in equity covers equitable rights, and has the advantage of combining both suits in one, and of supplying a bond to cover any damages that may result.
It follows, therefore, that, upon plaintiff’s making bond in the sum of-thousand dollars to cover damages and costs, the preliminary injunction prayed for will be granted to restore, until further order of this court, the physical situation of the Maturi and San Fernando canals and intakes as it was immediately prior to the recent reopening of them, that is to say, to restore them so that they will receive torrential and not surplus waters of the Jacaguas river. If the defendants have not complied with this order within five days, the marshal will forthwith see that the necessary alterations are made to affect the above result, and report the same to the court. Such further orders will be made in the premises as may appear necessary.
It is so ordered.