Davies v. Johnson , 22 Ariz. 63 ( 1920 )

CUNNINGHAM, C. J.

(After Stating the Facts as Above.)- — The appellee has moved to dismiss this appeal upon the grounds that the order is not appeal-able. We conditionally denied the motion, but permitted the parties to present the question at the hearing of the appeal.

Upon mature consideration of the question we are satisfied paragraph 1227, subdivision 2, grants the right to appeal from an order granting an injunction at any stage of the case in which the application is made. Judge SAWYER, speaking for the Supreme Court of California in Sullivan v. Triunfo G. & S. M. Co., 33 Cal. 385, passing on the statute of California, from which our statute was evidently copied, said:

“The language [of the statute] is explicit, and clearly covers every case of an order granting an injunction. It does not say ‘from an order granting an injunction made on notice, or upon order to show cause.’ Nothing is said about an order adjudicated after a contest, or after both sides have been he'ard. The appeal is from ‘an order granting an injunction’ in the broadest terms, without limit or qualification.”

That language is applicable to our statute.

The complaint alleges that the defendants are occupying the eighty acres of land belonging to the plaintiff under the assignment of a lease from the Hassayampa Creamery Company, to which company the plaintiff leased the land for a term beginning on the twenty-fourth day of January, 1918, and ending on the twenty-fourth day of January, 1921. The defendants accepted the land on the twenty-third day of May, 1919, under a lease in form from the Hassayampa Creamery Company for a term beginning on that date and ending on the twenty-fourth day of January, 1921. We quote from the Hassayampa Creamery Company lease, which is followed by the Davies ’ lease in wording, to wit:

“That the second party further agrees that it will properly and sufficiently irrigate the alfalfa stand now growing on said leased premises during said term and furnish the necessary water therefor, to the end that said alfalfa stand may be kept in á good growing and thriving condition as at the present time, and said second party further agrees that at the expiration of this lease the premises shall be returned to the first party with as much alfalfa stand as at present, and to farm the same in a prudent and reasonable manner.”

The complaint alleges, among other things, that—

Said defendants “threatened and are about to plow up said alfalfa lands, and to let or sublet said premises to persons who will plant the land to truck gardens and other crops, in violation of the terms of said lease; . . . and, unless enjoined or restrained by an order of this court, said stand of alfalfa upon said land will be totally destroyed and removed therefrom, and great waste committed thereon, to the great and irreparable damage of this plaintiff.”

Upon this allegation and the evidence in support thereof, the court granted the injunction as follows:

“The defendants be, and they are hereby, enjoined and restrained from planting, irrigating, or cultivating, or causing or permitting to be planted, irrigated, or cultivated, crops other than alfalfa upon any part of the lands and premises described in plaintiff’s complaint, which were, upon the twenty-first day of January, 1918, planted to alfalfa, upon the plaintiff’s giving bond in the sum of $1,000. The said lands and premises described in plaintiff’s complaint are as follows, to wit: The west half of the northwest quarter of section 29, township 2 north, range 4 east, Gila and Salt River base and meridian, Maricopa County, Arizona.”

Without doubt, the plaintiff landlord could not specifically enforce the covenant in question;’ therefore, paragraph 1459, subdivision 5, Revised Statutes of Arizona of 1913, withholds from the courts the right to grant injunctions “to prevent the breach of a contract the performance of which would not be specifically enforced.”

The granting of an injunction for the purposes for which this injunction was granted in this case was error, and in violation of the statute cited. Such is the view recognized in Anderson v. Neal Institutes Co., 37 Cal. App. 174, 173 Pac. 779, by the court of appeals of California, passing on the statute from which our statute was copied. The decision in that Gaseáis sound, and we apply it to our statute.

The order is reversed, and the cause remanded for such further proceedings as the law provides.

ROSS and BAKER, JJ., concur.