Long v. Kasebeer

28 Kan. 226

• Court: Supreme Court of Kansas
• Decided: January 15, 1882
• Status: Published

Opinions

The opinion of the court was delivered by

Horton, C. J.:

1. Injunction, petition, as evidence. It is objected that the verification to the petition is wholly insufficient, and ought not to have been received as evidence. Section 114 of the code, and many cases, are cited as sustaining the objection. Neither the provision of the code referred to, nor the decisions cited, support the objection. The question before us is not one of statutory verification. The pleading was not of the character to necessarily require verification, and the affidavit annexed to the petition made the petition sufficient , 1 to be received and considered on the hearing for the interlocutory order. In Atchison v. Bartholow, 4 Kas. 124, in the jurat annexed to the’petition the affiant merely testified on information and belief. In this case the affiant deposed that he was the agent of the plaintiff; that the plaintiff was a non-resident of the state;. that he had heard the petition read, and that the several matters therein stated were true.

It is further urged that the petition makes a case of simple naked trespass, and does not authorize a temporary or final order of injunction, or any other equitable relief. The petition will not bear this construction. It alleges that the plaintiff is now, and has been for years, the owner and in the actual possession of the premises; that the same are partially inclosed, and about fifty acres thereof broken and in-cultivation; and then sets forth that, proceeding under some pretended claim of right, the defendant is seeking to oust plaintiff from the possession of the premises, and appropriate the same to his own use and occupation. It further alleges that the defendant is irresponsible, and not able to respond in damages for the injuries and damages apprehended. So long as the plaintiff is in the actual possession of the premises, the defendant has no right by force to attempt to enter thereon to oust him of such possession, or to deprive him of the use thereof, or to erect any buildings thereon. It is said that the fact that the injury is irreparable may arise either from the nature of the injury, or the want of responsibility of the person committing it, and that either will furnish sufficient grounds for interference by injunction. To exclude equitable relief, it must not only appear that there is some remedy at law, but also that it is adequate. If the defendant is irresponsible, the actions at law proposed by his counsel can scarcely be said to be adequate.

Again, the defendant has no right to erect and maintain a building, on land owned and in the actual possession of plaintiff, and the erection of such building is a trespass of. a character to authorize equitable relief. (Grant v. Crow, 47 Iowa, 632; Sword v. Allen, 25 Kas. 67; Webster v. Cooke, 23 Kas. 637; Code, § 238.)

2. Temporary, injunction when granted. We do not understand from the petition'that the defendant has actually turned the plaintiff out of possession and taken full and absolute possession, but only that he has entered upon the land under some pre- ,. tended claim of title, and that he is seeking to oust plaintiff of all possession, and to assume the management and control of the land at the time of the application for the temporary order of injunction. The injunction, pendente lite, does not determine the parties’ rights, and as the district courts have considerable discretion in allowing or disallowing, and in sustaining or vacating temporary injunctions, we perceive no good reason in this case for reversing or vacating the order granted!

The order and judgment of the district court will be affirmed.

All the Justices concurring.