Farish v. Coon , 40 Cal. 33 ( 1870 )

Ceockett, J.,

delivered tbe opinion of tbe Court, Sprague, J., and Bhodes, C. J., concurring:

Tbe appeal in tbis case is from an order refusing to dissolve an injunction obtained by tbe plaintiffs against tbe defendants, Coon, Washington and Bullock, as Tide Land Commissioners, appointed under tbe Act of Marcb 30, 1868, and tbe defendants, Haigbt, McCoppin and Otis, composing tbe State Board, organized under said Act, enjoining tbe said defendants, and tbe Southern Pacific Bailroad Company, and tbe Western Pacific Bailroad Company, wbicb are also made defendants, from selling or advertising to sell at auction or otherwise, and from assigning, transferring or conveying to said railroad companies, or any other corporation or person, and from permitting or allowing said companies, or any other corporation or person, to take possession of certain tide and salt marsh lands, situate in tbe city and county of San Francisco, below high water mark in tbe bay of San Francisco.

Tbe injunction also prohibits tbe defendants from doing any act or taking any steps to aid or assist said companies, or any other corporation or person, to procure, or meddle, or interfere with, or acquire tbe title to, or possession of, or any interest in, said lands in hostility to tbe title or possession of tbe plaintiffs, or in derogation of their rights. Tbe motion to dissolve tbe injunction was made upon tbe complaint alone, and tbe motion having been denied, tbe defendants bave appealed. For tbe purposes of tbe motion and of tbis appeal, tbe allegations of tbe complaint must, therefore, be taken as true. Tbe claim of tbe plaintiffs to tbe relief demanded is founded on tbe ground that, in 1851, one Weir bad a brickyard on tbe adjoining upland, and erected buildings and employed a large number of men and horses for carrying on tbe business; that be claimed 160 acres adjoining tbe brick-yard, on which be pastured bis horses; that Farrington & Ludlum succeeded to all Weir’s rights for a valuable consideration? and continued to use tbe premises in tbe same manner; that, to render their claim more definite and valid, they caused tbe 160 acres to be surveyed; and, in tbe name of Farrington, in June, 1852, took up tbe same under and in accordance with tbe provisions of tbe Act of April 20, 1852, entitled: “ An Act prescribing tbe mode of defending and maintaining possessory actions on public lands in tbis State;” that in tbe latter part of 1852 they erected a substantial bouse on said land, at an expense of $1,500; and caused a substantial fence to be constructed around tbe tract, at a further expense of $1,500; that they immediately entered into tbe actual occupation of said dwelling-house and tbe lands so inclosed, and continued thereafter so to occupy them by themselves or tenants; that in January, 1858, Ludlum took up an adjoining tract of 74|- acres, under tbe Act aforesaid, for their joint use, and which was thereafter jointly used and possessed by them; that said locations were made in good faith, under tbe belief that said lands were public lands of tbe United States or of tbis State, and that it has since been ascertained and determined by tbe action of Congress and tbe adjudications of tbe Courts of tbe United States, that at tbe dates of said locations tbe said lands were public lands of tbe United States or of tbis State; that in July, 1853, Farrington & Ludlum united with Eddy, Story & Reed, who claimed some of tbe adjoining lands, in an agreement to unite their interests, whereby it was stipulated to form a joint stock company, of which Need, Eddy & Ludlum were appointed Trustees, and to cover tbe lands-claimed by tbe several parties witb school land warrants, issued by tbis State under tbe Act to provide for tbe disposal of tbe 500,000 acres of land granted to tbe State of California by an Act of Congress, and to bold, improve and sell tbe said lands, so to be covered by said warrants, for tbe benefit of tbe parties composing said company, according to tbeir respective interests; tbat tbe warrants were accordingly purchased and duly located in July, 1853, on a tract of 640 acres, which included tbe Farrington & Ludlum tracts; tbat tbe purchase money for tbe warrants was paid into tbe State treasury, and has never been refunded or offered to be refunded; tbat tbe warrants were located in good faith, and in tbe belief tbat tbe lands were subject to such location, and tbe parties were so advised at tbe time by eminent counsel; tbat in pursuance of said location tbe said lands were by tbe Surveyor-General of tbis State and by tbe Register of tbe United States Land Office for tbis State duly set aside, reserved and segregated from tbe mass of tbe public lands of tbe United States, in satisfaction of so much of tbe 500,000 acres granted to tbis State by Act of Congress; tbat said segregation remains in force and has not been vacated or annulled; tbat after tbe location of said warrants all tbe lands covered thereby were occupied by said Farring-ton & Ludlum and tbeir said associates to tbe exterior boundaries thereof; tbat in 1854, Farrington & Ludlum erected, at an expense of $2,000, a substantial board fence, sufficient to turn cattle, around tbe two tracts so located by them under tbe Possessory Act before referred to, and planted oyster beds on tbe land covered witb water, built oyster bouses and kept and maintained tbe same for many years; tbat Farrington & Ludlum, and those bolding witb and under them, prior to tbeir conveyance to tbe plaintiffs, expended in and about tbe premises and tbe purchase money thereof tbe sum of $15,000, and tbat prior to tbe first day of January, 1868, there has been expended in buildings and other improvements on tbe premises tbe further sum of $30,000; that in 1853 or 1854 one Hiram Pearson, being tbe owner of several school land warrants issued under the Act of 1852, located them in due form upon lands contiguous to those included in the locations already mentioned; that the lands covered with Pearson’s warrants were duly set aside and segregated from the mass of public lands, and that Pearson entered upon and took possession of said lands, and erected several houses and other improvements thereon to the value of several thousand dollars; that he continued in possession until he conveyed to the plaintiffs; that they have ever since been and now are in the possession, as purchasers in good faith and for a valuable consideration; that the plaintiffs and their predecessors and grantors have expended on said tract, in piling the same, erecting houses and other improvements thereon, and in defending their title thereto, the sum of $30,000, in good faith and under the belief that the rights so acquired would be rebognized by, and would be valid against, both the State of California and the United States; that such expenditures were made before any scheme was agitated for the disposition of such lands by the State; that portions of the lands covered by the said school land warrants are upland, and other parts are salt marsh or overflowed lands; that the plaintiffs have succeeded to all the rights of Farrington & Ludlum, Peed, Eddy, Story and Pearson in and to the whole of said lands, and that they and their said predecessors and grantors have been in the bona fide, actual, continued, peaceable and undisturbed possession, holding and claiming the same adversely to the State for the continuous period of more than ten years, and that no right or title has accrued to the State during said period; and that during the whole of said period, neither the State, nor the people thereof, nor those from whom they claim, has, or have received the rents and profits of said lands or any part thereof, and that the State is, therefore, barred by the Statute of Limitations of this State, as well as in equity and justice, from setting up title thereto; and the plaintiffs then allege C£that no part of said lands below high water mark, or marsh lands, so claimed by tbe plaintiffs, belongs to tbe State of California, or did belong to said State on tbe 30tb day of March, 1868.”

Tbe complaint then avers tbat tbe Tide Land Commissioners, under tbe pretest tbat those tide and marsh lands belong to tbe State, have proceeded to have them surveyed and laid out in lots, blocks and streets, and threaten to sell tbe same, or portions thereof, at auction, and to assign to said railroad companies other portions thereof, under said Act of March 30,1868, and tbat said companies threatened to take possession of the lands so awarded to them, in disregard of the rights of the plaintiffs.

It is not pretended on behalf of the plaintiffs that, by virtue of'the location under Act of April 20, 1862 (Stats. 1852, p. 158) “prescribing the mode of maintaining and defending possessory actions on public lands in this State,” Far-rington & Ludlum acquired a title to tbe land which they could assert against this State or the United States. It is apparent, not less from the title of the Act than from all its provisions, tbat its only purpose was to prescribe a method not for acquiring title, but to protect the occupant in the temporary possession of a limited portion of tbe public land. This is too plain to justify discussion or the citation of authorities. Nor is it claimed tbat the plaintiffs, their predecessors, or grantors, acquired title, eo nomine, to the marsh lands covered by the ebb and flow of the tide, by virtue of the location of the school land warrants. The Act of May 3, 1852 ( Stats. 1852, p. 41), under the provisions of which the warrants were issued, defines its purpose in its title: “An Act to provide for the disposal of the five hundred thousand acres of land granted to this State by Act of Congress, that the people of the State of California may avail themselves of the benefit of the eighth section of the Act of Congress, approved April 4, 1841, Chapter NYL, entitled an Act to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights, tbe following provisions are hereby enacted.” The third section of tbe Act authorizes tbe warrants to be located “upon any vacant and unappropriated lands belonging to the United States, within the State of California, subject to such location.” The tide and overflowed lands in contest, did not belong to the United States, and by the very letter of the statute were not subject to''the location of these warrants. But it is useless to pursue the discussion on this point, inasmuch as it is not claimed on behalf of the plaintiffs that tide and overflowed land was subject to location with school land warrants. But it is insisted that, even though such lands were not, in law, subject to such location, nevertheless, the actual location of the warrants, in good faith, and an entry in like good faith under the location, qualified and gave character to the possession; that the locator was not a mere intruder, without color of right, and is not to be deemed a naked trespasser. In support of this view we are referred to sections five and seven of the Act, by the former of which it is provided, that “the location made of the lands belonging to the United States, as aforesaid, shall secure to the purchaser the right of possession to the land embraced in said survey, until such time as the Gov-erment survey shall have been made, after which, said lines shall be made to conform to the lines of sections, quarter sections and fractional sections of said Government survey.” By the terms of the Act the warrants were authorized tobe located on “any vacant and unappropriated lands belonging to the United States, within the State of California, subject to such location;” and the Legislature manifestly contemplated that they might be located on unsurveyed- public lands of the United States; and the fifth and sixth sections were intended to adjust the lines of the locator, after the Government survey shall have been made, and to protect him in his possession until such survey. But it is plain, that to entitle himself to this protection, his location must have been made upon lands “belonging to the United States,” as provided in sections three and five. If he had located his warrant upon land which had already gone into private ownership, and was, therefore, no longer the property of the United States, no one, I apprehend, would claim that lie could invoke Section 5 as a shield against an action of trespass by the true owner. We cannot impute to the Legislature the absurdity of intending to protect, as against the true owner, a possession acquired in violation of law. The statute authorized the warrants to be located only upon lands belonging to the United States, and a location upon other lands would be null and void as against the true owner; and an entry under such unauthorized location would be a trespass as against him. But the Legislature foresaw, that in the then unsettled condition of land titles in this State, it might often be difficult to ascertain what lands were private property and what the property of the United States, and that the holders of school land warrants, acting inperfect good faith, might possibly locate them upon private lands, supposing them to be public. Deeming that it would work a great hardship in such cases on the holder of the warrant to deprive him of the right to make another location, Section 7 of the Act was intended to supply a remedy by authorizing the holder to float his warrant and locate it on other lands subject to location. Hence it provides that, “in the event that any location of lands be made under and by the provisions of this Act upon lands supposed to belong to the United States which should prove to be lands not the property of the United States,” then, and in that event, the holder may float his warrant and locate it upon any other public land. But not the least support is found in Sections 5 and 7, or in any other portion of the Act, for the proposition that the location of a school land warrant on lands not belonging to the United States, even though made in perfect good faith, would confer on the locator a right to the possession as against the true owner, or would amount to a color of title. Such a location as against the true owner would be simply a nullity, and an entry under it a naked trespass. If A should agree to sell to B a tract of land of which he was the owner, or should authorize him to select out of the general tract a certain number of acres and to enter into the immediate occupation of it, and if B, acting ia good faith, and through an innocent mistake, should enter not ifpon the lands of his vendor A, but upon the lands of C, no one, I apprehend,' would maintain that he entered under color of title, or would not be a mere trespasser. So in this case, the State authorized the predecessors of the plaintiffs to locate their warrants only on lands belonging to the United States, and not upon any other lands whatsoever; and if, acting in good faith and under the advice of counsel, they have made an innocent mistake in attempting to locate the warrants upon lands not subject to location, it is their misfortune to have made the mistake, but the State did not contribute to it, and is in no manner responsible for it. The Act, under which the warrants were issued, defined in the most explicit terms that they could only be located on lands “ belonging to the United States,” and if, notwithstanding the thoroughly well settled principle, and the numerous adjudications of the Courts to the effect that lands covered by the ebb and flow of the tide do not belong to the United States, the plaintiffs and their predecessors have fallen into the innocent mistake of supposing that the warrants could, nevertheless, be lawfully located on these tide lands, it is their misfortune to have been ill advised by the counsel on whom they relied for advice. But the mistake, however innocent, cannot change the character of the transaction, and make that lawful which was wholly unauthorized by law. The location of the warrants on tide lands being void ah initio, as against the true owner, their entry under these void locations was a mere trespass, without authority of law or color of title.

Nor is the State estopped from asserting title to these lands by the fact that the purchase money for the warrants was paid into the State treasury, and has never been refunded or offered to be refunded. When the predecessors of the plaintiffs purchased the warrants, they knew, or were bound in law to know, that they could only be located on lands belonging to the United States. The warrants were sold to them by the State for that express purpose and no other, and there was no covenant, express or implied, that if, ,. through mistake, the warrants should be located on other lands, not subject to location, the State would refund the money. On the contrary it provided a wholly different remedy, to wit: that the warrants might be floated and located on other lands, and this remedy is yet open to the plaintiffs. But to hold that because the plaintiffs’ predecessors, in violation of law, located the warrants on tide lands not subject to such location, the State shall be estopped from claiming the land unless she first performs an act which she never agreed to perform, to wit: to refund the purchase money for the warrants, would be to pervert the doctrine of estoppel to purposes of injustice and wrong. Estoppels axe maintained on precisely the opposite theory. The State is under no obligation, legal or moral, either to return the purchase money for the warrants or to refrain from claiming the land. She never agreed, either expressly or by implication, to do either the one or the other, and equitable estoppels are founded solely on the theory, that to permit the party to maintain the right which he asserts would operate as a legal fraud upon his adversary. The State is not bound, either legally or in good conscience, to refund the purchase money for the warrants, nor to refrain from claiming these lands, on which the plaintiffs, without her consent and in violation of law, have located the warrants. But the complaint alleges that the lands have been set apart and segregated from the mass of public lands, by the location of the warrants, and have been credited to the United States, as a satisfaction, pro tanto, of the claim of the State to the five hundred thousand acres donated to this State by Act of Congress. It is appar-rent, however, on the face of the complaint, that this averment is not, and cannot possibly be true in respect to these tide lands. The United States Eegister for California had no authority in law to consent to the location of the warrants on tide lands not the property of the United States. These lands were not under his control, nor within his jurisdiction for any such purpose; and he had no authority to intermeddle with them. His approval of the locations was ultra vires, and therefore a nullity. Nor had the Surveyor-General of this State any authority whatever to approve the location on tide lands. The law had conferred on him no power, in this respect, over tide lands. He had no discretion to exercise in respect to such a location, for the obvious reason that the disposal of such lands in that method was not within his jurisdiction. The Legislature had confer-ed upon him no power in that behalf; and in attempting to approve of a sale of tide lands under school land warrants, he simply exceeded his powers, and the act was void. It is too-plain to merit discussion that if the plaintiffs or their predecessors had obtained a patent from the State for these tide lands, founded on their location of the warrants, and if it had appeared on the face of the patent that the lands were covered by the ebb and flow of the tide, and that the United States [Register and the State Surveyor-General had approved the location, the patent would have been void on its face, for the reason that the Legislature had never authorized these lands to be disposed of in that method; and the title of the State could not be divested by the unauthorized acts of her ministerial officers, to whom she had delegated no such authority over these lands. A contrary rule would place all the property of the State at the disposal of her ministerial agents, acting wholly without the authority of law and beyond the scope of their powers.

The complaint, amongst other matters, avers that “no part of said lands below high water mark, or marsh lands, so claimed by the plaintiffs or either of them, belongs to' the State of California, or did belong to said State on the 30th March, 1868,” the date of the Act from which the Tide Land Commissioners derive their authority in the premises. The Act authorizes the Commissioners to deal only with tide lands 'belonging to the State; and it is claimed on behalf of the plaintiffs, that, inasmuch as these lands did not, at the passage of the Act, and do not now, belong to the State, and are alleged to be in the actual possession of the plaintiffs, the defendants should be, and were, properly enjoined from intermeddling with them.

But the allegation that the lands do not, and at the date referred to did not, belong to tbe State, must be construed in connection with tbe context and other portions of tbe complaint. In construing a pleading, it is not permissible to take an isolated sentence, separated from tbe context, and give effect to it as an independent averment, unless upon tbe whole pleading it appears to bave been so intended. After a careful consideration of tbe complaint, we are satisfied it was not tbe intention of tbe pleader to aver it, as an independent fact, that tbe lands did not and do not belong to tbe State. On tbe contrary, in tbe preceding portions of tbe complaint tbe plaintiffs set out minutely tbe nature of tbeir -alleged title to these tide lands, which, prima facie, are sub modo tbe property of tbe State by virtue of its sovereignty; and after giving a detailed history of tbe transactions, which, it is claimed, operated in law to divest tbe title of tbe State, or at least to establish an equitable estoppel against her, tbe complaint proceeds to tbe allege that, by reason of these transactions, “ tbe said State and tbe people thereof are, by tbe statutes of said State as well as in equity and justice, barred and precluded from setting up'or alleging or insisting upon any claim or title whatever to-said lands as against these plaintiffsand immediately succeeding this allegation is tbe averment, in general terms, that no part of tbe said tide or marsh lands “ belongs to tbe State of California, or did belong to said State on tbe 30fch of March, 1868.” This was evidently intended to be a statement of a conclusion of law, from tbe facts which immediately preceded it, and was not designed to be an averment of an independent fact. On tbe other band, if this sentence be wholly disconnected from its context, and be treated as an independent averment; that on tbe 30th day of March, 1868, tbe State bad not, and has not now, any title to these lands, it is not sufficient for tbe plaintiffs simply -to allege in general terms that tbe State bad and has no title; but, inasmuch as-the State is prima facie tbe owner sub modo of tbe tide lands, and entitled to control them, it is incumbent on those who challenge her right to do so to state in what manner her rights bave been lost or impaired; and why and for wbat particular reasons sbe should be enjoined from interfering with the land. It is not enough to allege that she has no title; but it should be shown in what manner her -title was lost, or for what reason she should be enjoined from selling and disposing of land which, prima facie, is subject to her control. •

The complaint in this case is a bill in equity; and in determining its legal effect we must look at the whole complaint, which admits the lands in contest to be tide lands, and which are therefore prima facie subject to the control of the Legislature. If it has lost the right and power to control them, the complaint should have stated specifically by what method, if otherwise than is particularly stated.

' The only remaining question is that arising under the ■ Statute of Limitations, the third section of which is in the following words: “The people of this State will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless: first, such right or title shall have accrued within ten years before any action or other proceeding for the same shall be commenced; or unless, second, the people, or those from whom they claim, shall have received the rents or profits of such real property, or of some part thereof, within the space of ten years.’"

The complaint alleges that the plaintiffs and their predecessors have been in the bona fide, actual, continued, peaceable and undisturbed possession of the land for more than ten years, holding and claiming the same adversely to the State; and that no right or title had accrued to the State during said period; and that during all said period neither the State or the people thereof, or those from whom they claim, had received the rents and profits of said lands, or any part thereof. Lor the plaintiffs it is insisted that these averments bring the case fully and fairly within the third section of the Act, and that the title of the State is, therefore, barred. It is further claimed, on the authority of Arrington v. Liscom (34 Cal., 365), that the effect of the statutory bar is to divest the title of the State and wholly extinguish it, as against tbe plaintiffs; and, consequently, that tbe defendants were properly enjoined from disturbing tbe plaintiffs’ possession.

As already stated, in construing a bill in equity, we must look at all its allegations, and are not at liberty, to treat an isolated sentence, separated from its context and from other portions of tbe complaint, as an independent averment, unless it satisfactorily appears to bave been so intended by tbe pleader. In tbe preceding portions of tbe complaint there is a detailed narrative of tbe circumstances under which tbe plaintiffs and their predecessors entered upon tbe land. It distinctly appears that tbe entry was made, first under tbe Possessory Act; and second, under tbe location of school land warrants. Tbe complaint so states, and tbe plaintiffs are bound by this admission. There is an averment, it was true, that as to a portion of tbe land, one "Weir bad a brickyard upon it and depastured bis horses on tbe adjoining lands; and that Farrington & Ludlum, who succeeded to bis rights, took up this portion under tbe Possessory Act as a part of tbe public lands of tbe United States, and inclosed and occupied tbe same. But it further appears that Farrington & Ludlum, and others who became associated with them, afterwards located school land warrants on tbe whole of this tract, and thenceforth claimed and occupied under such location. In respect to such portions of tbe lands in contest as were originally claimed by Pearson, to whose rights, it is alleged, tbe plaintiffs bave succeeded, it is not pretended that Pearson ever bad or claimed any title or possession, except under and by virtue of tbe location of school land warrants. It appears, therefore, that all tbe lands in contest were located under school land warrants, and baAre been held and occupied by tbe plaintiffs, and, as they allege, are yet held and occupied by them by virtue of such location. Such a bolding and occupation is not adverse to tbe title of tbe State; on tbe contrary, it admits tbe title to be in tbe State, and tbe precise and only object of locating such warrants on public lands is, that tbe locator may thereby acquire the title of the State. As between the locator and the State, the location of the warrants is an admission by Mm that the title is in the United States, and that be is authorized, as the holder of the warrant, to select the particular tract on behalf of the State and to appropriate it to his own use, and that he thereby becomes entitled to a patent from the State. He holds, therefore, not adversely, but in subordination to the title of the State. His claim is, not that he has an adverse title, but that he has an equitable right to demand that the State,shall convey to him its title. In other words, he claims to be in the position of a purchaser in possession, who is entitled to a conveyance; and in such eases it is well settled that the possession of the purchaser is not hostile, but is in consonance with the title of the vendor. In order to put the Statute of Limitations in motion in such a case, it must appear that the purchaser repudiated the title of the vendor, and claimed to hold, not under that title, but in hostility to it. The statute will commence to run only from the time when the purchaser openly disavows the title of the vendor and claims in hostility to it; and, even in that case, notice of the repudiation of his title must be brought home to the vendor, or the hostile claim of the vendee must be evidenced by acts of such notoriety that notice to the vendor will be presumed. Those are familiar propositions, and need no further discussion.

But it may be urged on behalf of the plaintiffs, that in respect to these tide lands the State claims, and it has already been assumed in this opinion, that inasmuch as the warrants 'could not be lawfully located on tide lands, the relation of vendor and vendee did not exist between the State and the plaintiffs, or their predecessors. But this does not obviate the difficulty. 1 The State sold the warrants to the predecessors of the plaintiffs on the express agreement that they were to be located on public lands of the United States, and on no other lands. Instead of this, however, the warrants were located, in violation of the agreement, on tide lands not subject to such location. It is strictly analagous to tbs case of a vendee wbo purchases from bis vendor a particular tract of land, and wbo, through mistake or fraud, under color of bis purchase, enters upon another tract of the same vendor. Notwithstanding the mistake or fraud, the entry is under the claim of title assumed to have been derived from the vendor, and is in subordination to the vendor’s title. The vendee professes to hold and claim under the vendor, and not in hostility to his title. Such a possession cannot be deemed “adverse” in any just sense. The very essence of an adverse possession is, that the holder of it claims the right to his possession, not under, but in opposition to, the title to which his possession is alleged to be „ adverse. So long as he claims to hold under that title, his possession is not adverse to it, and the Statute of Limitations does not run against it. The plaintiffs, and their predecessors, claimed to be entitled to the possession of the lands in contest under and by virtue of the location of the school land warrants, and though it now appears that the lands were not in law subject to such location, nevertheless the possession was not adverse to the title of the State, for the reasons already stated, to wit: that it was claimed and held trader the belief, as alleged in the complaint, that the locations were valid, and entitled the locators to the possession. The fact that they were mistaken in this belief cannot change the character of the possession and convert into a hostile occupation one which was in fact amicable. I am, therefore, of the opinion that, taking the whole complaint together, it does not aver or show in the plaintiffs or their predecessors a possession adverse to the title of the State. But if it be assumed that the complaint contains a full and sufficient averment of an actual adverse possession for more than ten years before the commencement of the action, I am, nevertheless, strongly inclined to the belief that the tide lands held by the State in virtue of its sovereignty are not within the purview of the third section of the Statute of Limitations. The title of the State is held by a peculiar tenure, and it may well be doubted whether it can be properly said to have “accrued” to the State, in the sense in which that term is employed in this section. But it is unnecessary to express a decided opinion on this point, inasmuch as the views already announced dispose of the case.

In my opinion, the order refusing to dissolve the injunction ought to be reversed, and the District Court should be directed to enter an order dissolving the injunction, and it is so ordered.

By "WALLACE, J: I concur in the judgment. Temple, J., having been of counsel, did not participate in the decision.