SLADE v. SULLIVAN et al., 17 Cal. 102

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring. We do not see upon what ground we could interfere with the decision in this case. The prayer for an injunction was addressed to the sound discretion of the Court, and we cannot perceive that there was any abuse of discretion in refusing to grant it. The case is by no means free from embarrassment, but we should be in danger of doing great injustice if we were to undertake to control the exercise of a discretionary power where it is not perfectly apparent that some provision of law has been violated.

It may, in many cases, be a question of great difficulty as to how far the Courts should go in extending protection of this character to improvements upon the public mineral lands as against miners, and in such cases, the revisionary authority of this Court should be exercised with the utmost caution. In the present case, it is evident that the plaintiff will sustain but little damage from the operations of the defendants, and that this damage may be easily repaired.

The “ milk house,” which it is claimed will be destroyed, is an old, dilapidated building, surrounded by no enclosure, and for all purposes of use, neglected and abandoned. The dam used by the plaintiff in the irrigation of his garden may be replaced at a trifling expense, and no injury to the garden will necessarily result from its destruction. The diminution in the value of the premises from the working of the ravine in front of the dwelling house is a mere matter of speculation, and the Court below having parsed upon it, we are not disposed to interfere.

So far as the right of way from the house to the road is concerned, no steps have been taken to secure it against interruption, and the plaintiff has, therefore, no cause of complaint. He might have avoided any difficulty in this respect, by complying with the provisions of the Act concerning Roads and Highways. It does not appear that any of the injuries, for which, if committed, he will be entitled to recover, may not be compensated in damages, and under the circumstances, we cannot undertake to say that an injunction was improperly refused.

It is true, the complaint charges that the defendants are insolvent; but this is denied in the answer, and the record does not show that any evidence was introduced upon the subject. Judgment affirmed.