King v. Stark County , 66 N.D. 467 ( 1936 )

The plaintiff complains because the court made reference to the demurrer to the complaint and says: "The appeal is not from any demurrer to the complaint. The appeal is merely from an order in a provisional remedy in connection with the action granting a temporary injunction."

The opinion shows that: "The sole purpose of this action is to enjoin the State from making this improvement." In determining the right to an injunction, however, we must know whether the complaint states a cause of action.

Petitioner says: "the only question before this court . . . was whether or not the plaintiff had an adequate remedy at law;" then adds, "There cannot be any question but what the plaintiff did have an adequate remedy at law, because it is a well-settled rule that either a state, county or highway commission is liable to an abutting land owner for damages done to his land, and they are suable." This practically ends the controversy as it is a well-settled rule of law that ordinarily an injunction will not be granted when there is an adequate remedy at law. See 14 R.C.L. p. 341 and cases cited; also Bartels Northern Oil Co. v. Jackman,29 N.D. 236, 150 N.W. 576; Strobeck v. McWilliams, 42 N.D. 30,171 N.W. 865.

Petitioner says: "The court in its opinion refers to certain concessions and stipulations made. Counsel for the petitioner cannot find anything in the brief of opposing counsel as to any concessions or stipulations and is informed that no transcript of settled statement of the case was made of any hearing. It appears from the briefs that the order of the lower court was based upon the complaint and the affidavits. Consequently those concessions and stipuulations must have been made at the hearing before the Supreme Court."

The counsel has overlooked the record in this case. This record, as certified to this court, includes a transcript of proceedings in the lower court at the time of the hearing on application for the temporary injunction, and sets forth the stipulations to which this court referred. But petitioner now says that no matter what stipulations and concessions may have been made "counsel for petitioner after making an investigation can assure this court that these stipulations and concessions do not square with the actual facts which facts will be shown in a subsequent action for damages if the plaintiff is not barred by the opinion in this case from doing so." Relief from stipulation can be had in proper proceedings.

Petitioner says it is true that the right of compensation is not involved here, but that this court goes ahead and decides the matter of compensation. In this the petitioner is mistaken. We decide that the plaintiff is not entitled to a temporary injunction under the showing presented to us here.

The petitioner complains because this court, in reference to the wife says: "that she resides on the land, and it is not occupied as a homestead." The stipulation made by the parties at the hearing so states. It is part of the record here, and there is nothing in the record showing the husband lives on the land east of the road. Reference was made to this feature to show that the allegation in his complaint as to the ownership of all of this land affected is not in harmony with the stipulation made at the time of trial. To determine the issue presented to us we were required to consider the complaint, the affidavits for and against the application for injunction, and the stipulated facts. From these we determine plaintiff has not shown himself entitled to an injunction.

The petition for rehearing is denied.

BURKE, Ch. J., and CHRISTIANSON and MORRIS, JJ., concur.