To my mind the pertinent question here presented is whether the trial court by making and entering its order of October 13, 1943 superseding or staying the preliminary injunction granted October 12, 1943, exercised a sound judicial discretion or abused such discretion. As I read and understand the record there was a total failure on the part of defendant to make any showing that would set in action the discretion of the court to modify, stay or supersede the preliminary injunction. InSafford v. Flemming, 13 Idaho 271, 89 P. 827, it is said that the granting of an injunction pendente lite rests in the sound discretion of the court.
In Castlebury v. Harte, 15 Idaho 399, 402, 98 P. 293, in the course of that opinion it is said:
"Where the title and possession of real estate is in litigation and each of the litigants claims the same, upon a proper showing, an injunction pendente lite will be granted to preserve the land in statu quo pending the litigation. Under subdiv. 2 of sec. 4288 Rev. Stat., [now 6-402, I.C.A.] it is provided that an injunction may be granted when it appears by the complaint or affidavit or cross-complaint or affidavit of defendant that the commission or continuance of some act during the litigation would produce waste to the land in controversy. We think it sufficiently appears from the papers which were considered on the motion for an injunction that the cutting of the timber on the land in dispute would produce waste."
In Staples v. Rossi, 7 Idaho 618, 65 P. 67, the following language is used:
"It has been held repeatedly in this court that the granting of an injunction is a matter within the discretion of the lower court and the judge thereof, and that that discretion should not be disturbed except in cases of clear abuse of discretion. The allegations of the complaint, if sustained at the trial, will establish the ownership of the plaintiffs in the mining ground described, and to the timber cut therefrom by appellants, and which they have been *Page 390 temporarily restrained from removing, and the plaintiffs should be protected until the question of ownership is determined. If plaintiffs succeed in establishing their title, they areentitled to protection to their property in specie. Without the aid of injunction I know of no other remedy which will fully protect them in their rights." (Italics ours.)
In Gilpin v. Sierra Nevada Con. Min. Co., 2 Idaho 696, 703, sec. 4288 R.S., [now 6-402, I.C.A.) was construed. In that caseinter alia it was held: "Where a party makes a prima facie case that he is in possession of the claim * * * he is entitled to an injunction restraining other parties * * * from extracting ore * * * until the matter can be determined on its merits." (Syllabus.) The court's order of October 13, 1943, if sustained, would result in not preserving the property in statu quo until the subject matter of the litigation was finally disposed of on its merits.
As stated in Price v. Grice, 10 Idaho 443, 452, 79 P. 387:
"It is stated in section 1148, 2 Spelling on Injunctions and Extraordinary Remedies, that all of the authorities agree that the granting or dissolving of an injunction, where the facts are in dispute, is within the discretion of the chancellor, nor will the action of the chancellor be reversed unless it is claimed that he has committed an error or abused a soundjudicial discretion." (See Harriman v. Woodall, 31 Idaho 750,176 P. 565.) (Italics ours.)
In Shields v. Johnson, 10 Idaho 454, 79 P. 394, we said:
"A large discretion is vested in the trial court in the granting of temporary injunctions to hold property in statu quo pending the determination of the action, and its exercise will not be reversed on appeal unless a clear abuse is shown." (Syllabus.) (See also Weber v. Della Mountain Min. Co., 11 Idaho 264,81 P. 931.)
Quoting from Staples v. Rossi, supra:
"A preliminary injunction is not a matter of strict right. Its issuance rests in the sound discretion of the court; and the exercise of this discretion in granting or refusing the injunction will not, as a general rule, be reviewed on appeal, or otherwise controlled or interfered with" unless a clear abuse of discretion is shown.
The preliminary injunction of October 12, 1943, was properly issued in order that the subject matter might be *Page 391 preserved in statu quo until the final determination of the cause. The court had jurisdiction to entertain defendant's application to stay or supersede the preliminary injunction (Rowland v. Kellogg Power Water Co., 40 Idaho 216,233 P. 869), but in doing so the court plainly and clearly abused the sound judicial discretion vested in it by its order staying and superseding the injunction issued October 12, 1943. Where there is a clear and plain abuse of discretion shown, and great and irreparable injury would result therefrom, the court's order should be set aside on that ground. That the court did clearly abuse its discretion is to my mind conclusively established by the record. Consequently, its order of October 13, supra, was erroneous and should be set aside and the injunction issued October 12, supra, reinstated.
Under the provisions of sec. 13-202, I.C.A., the writ of review was properly issued. There was no other speedy and adequate remedy to preserve the subject matter in controversy in statu quo until a final determination of the cause. Conceding, but not deciding, that an appeal would lie from the order of October 13, supra, it would not constitute a speedy and adequate remedy for the reason that all of the timber might well be removed prior to the determination of the litigation in the district court, and on appeal, in case appeal be taken. Moreover, it has been held that even in case appeal may be taken, if the latter be ineffectual as a remedy, a writ of review will lie. (Paul v. Armstrong, 1 Nev. 82.)
As said in 28 Am. Jur. 236, sec. 39:
"It is difficult, if not impossible, to formulate a definition or rule that will be a sufficient guide in all cases in determining the existence of a legal remedy of such an adequate and complete character as will preclude relief by injunction. The matter must be determined from the facts and circumstances of each particular case. It is not enough thatthere is a remedy at law. But the remedy, to preclude injunction, must be certain and reasonably prompt, and as practicable and efficient to the ends of justice and its administration, both in respect of the final relief and the mode of obtaining it, as an injunction would be. The chief cause of the inadequacy of the remedies at law lies in the fact that the injury is irreparable * * * Where an irreparable and continuing unlawful injury is threatened to private *Page 392 property and business rights, equity will generally enjoin it in behalf of the persons whose rights are to be invaded * * *." (Italics ours.)
For reasons above stated and others that might well be given, I am thoroughly convinced that the district court erred in staying or superseding the injunction issued October 12, 1943; that in doing so it clearly abused its discretion, its action being wholly unwarranted.
The cause should be reversed and remanded with instructions to set aside the order of October 13, 1943, and reinstate the injunction issued October 12, 1943.
Givens, J., concurs.