United Railroads v. Superior Court , 172 Cal. 80 ( 1916 )

I concur in the judgment. While the question is not to my mind free from doubt, I have come to the conclusion that the injunction should be viewed as prohibitive rather than mandatory.

The solution of the problem is not greatly aided by an examination of the authorities cited on either side, for in none of them was there presented a set of facts at all like those before us here. A mandatory injunction is one which commands affirmative action by the defendant. The character of the order as mandatory or prohibitive is not determined by the form of words in which it is cast. Affirmative action may be required by phrases which on their face purport to prohibit. An injunction which restrains directors of a corporation from refusing to recognize the plaintiff as one of their number is mandatory because in effect it compels them to recognize him. (Foster v. Superior Court, 115 Cal. 279, 284, [47 P. 58].) An injunction which prohibits a defendant in possession of tangible real or personal property from interfering with the plaintiff's taking of possession is mandatory because it compels the defendant to turn over his possession to the plaintiff. (Clute v. Superior Court, 155 Cal. 15, [132 Am. St. Rep. 54, 99 P. 362].) The Clute case is the one upon which the respondents place their main reliance, but I do not think the doctrine of that decision can be extended to fit the requirements of the present situation. Here the defendant is not required to transfer the possession of tangible real or personal property. The defendant was claiming the right to run its cars over certain tracks. This right was disputed and its exercise enjoined. If we take words in their ordinary meaning, it is difficult to see that any affirmative action is required by an order which merely prohibits a defendant from operating cars over a certain route. The fact that the defendant had for some time been enjoying its asserted right to so run cars does not change the character of the order. If this were not so, almost any injunction against the doing of repeated acts would be mandatory if the performance of the acts had begun and been carried on for any considerable time prior to the application for the injunction. For example, an injunction against the continued operation of a cement plant to the injury of plaintiff's adjacent orange grove (Hulbert v. CaliforniaPortland Cement Co., 161 Cal. 239, [38 L. R. A. (N. S.) 436,118 P. 928]), or against the operation of a ferry claimed to have been conducted in infringement of the plaintiff's franchise rights (Vallejo Ferry Co. v. Solano Aquatic Club,165 Cal. 255, [Ann. Cas. 1914C, 1197, 131 P. 864]), or one restraining a smelting company from permitting fumes from its works to blow over and upon neighboring lands (People v. SelbySmelting L. Co., 163 Cal. 84, [Ann. Cas. 1913E, 1267,124 P. 692, 1135]), could be regarded as mandatory. But although in each of the cases just referred to the plaintiff's right to an injunction was bitterly contested, it does not appear to have occurred to the learned counsel representing the various defendants that the injunctions were mandatory and that their effect could, for this reason, be stayed pending appeal.

I agree, therefore, that this injunction does not command affirmative action, but prohibits the repetition of acts found by the court to be unlawful. It is not made mandatory by the fact that the commission of such acts had gone on for some time before the commencement of the action.