I concur in the judgment dissolving the injunction, but I am not in accord with the views expressed in the opinion. The opinion of the court will be interpreted as holding that no injunction which for authority of law is dependent upon subdivisions 1 or 2 of R.S. 1925, art. 4642, can be lawfully granted where there exists any other adequate remedy at law. I do not believe that such is a proper interpretation of said statute. The opinion sanctions a proposition which occurs to me to be sound, viz., that statutory authority for an *Page 653 injunction which is not in terms made subject to the condition that there shall exist no adequate remedy at law is not so conditioned, and the right to such injunction is not dependent upon the nonexistence of an adequate remedy at law. When said article 4642 was first enacted, it was R. S. 1879, art. 2873. It then consisted in slightly different form of present subdivisions 1, 2, and 3. Subdivision 4 was added subsequently. As it was first enacted, the first three subdivisions read as follows: "1. Where it shall appear that the party am plying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant. 2. Where, pending litigation, it shall be made to appear that a party is doing some act respecting the subject of litigation, or threatens, or is about to do some act, or is procuring or suffering the same to be done in violation of the rights of the applicant, which act would tend to render judgment ineffectual. 3. In all other cases (italics ours) where the applicant for such writ may show himself entitled thereto under the principles of equity."
It is apparent that subdivision 1, although not in identical words as at present, has not in legal effect been changed. Subdivision 2 has not in legal effect, perhaps, been changed, although it is more clearly apparent that the original enactment only authorized a restraining injunction. Present subdivision 3 is just as comprehensive as when first enacted, and more so. There is the certain addition as follows: "And the provisions of the statutes of this State relating to the granting of injunctions." There is this other change in subdivision 3, viz., that the cases in which injunctions may be issued under authority of subdivision 3, as first enacted, are "other cases" than those in which injunctions were authorized to be issued under authority of subdivisions 1 or 2 as originally enacted. It thus appears from the very wording of the statute itself as originally enacted that the authority to issue injunctions given by subdivisions 1 and 2 was independent of, and therefore additional to, that given by subdivision 3. But subdivision 3 embraced all the powers in that respect which courts possessed prior to the enactment of the statute. What right then could have been intended to be given by subdivisions 1 or 2 which would be additional to, and independent of, those provided for in subdivision 3? None that I can conceive, except that as to cases coming within their provisions it was unnecessary that there be absent an adequate remedy at law. I fully recognize that a legislative act may be merely declaratory of the pre-existing law. A statute should not be so interpreted, however, unless it is required. The presumption ought to obtain that the Legislature did not intend to do a useless thing. Such a construction of an act would be wholly unwarranted, I think, where the act iself clearly evidences a contrary intent. Such contrary intent is as clearly shown in R.S. 1879, art. 2873, as if it had in plain words so stated. Why should the Legislature have embodied all the pre-existing law in subdivision 3 and by its language show that such powers were in addition to those provided in subdivisions 1 and 2? The subsequent amendments do not, I think, manifest that clear intent to make a change in the statute originally enacted as would be necessary to warrant such a construction.
The more difficult problem, as I see it, is to rightly interpret subdivision 1. To interpret it as being as comprehensive in its grant of authority to issue injunctions as subdivisions 2, 3, and 4 all together would be absurd. It would also be contrary to its express terms. By its own terms it could never apply so as to authorize a mandatory injunction. This alone answers any argument which could be made to the effect that it is as broad as subdivision 3 or as the powers that existed prior to the enactment of the statute. Subdivision 1 by its express language only applies so as to authorize an injunction to restrain some act. The prescribed requisites may be enumerated as follows: (1) The applicant must be demanding some relief. (2) He must be entitled to the relief demanded. (3) The relief demanded, or same part thereof, must require the restraint of some act. (4) The act sought to be restrained must be one prejudicial to plaintiff in obtaining the relief demanded. To hold that, if and when these facts are present, a party is not entitled to an injunction, unless he plead and prove that there exists no other adequate remedy, is, in my opinion, to read something into the law which the whole article of which subdivision 1 is a part has plainly excluded. In addition to the limitation above stated, upon the operation of subdivision 1, is another which is just as true a limitation, but the fact does not so clearly appear from the reading of the provision itself; that is, that subdivision 1 can only apply to a temporary injunction. The reason for this view will appear later.
Now, let us ask what is meant by "the relief demanded." Not relief byinjunction. Most certainly, at least, not relief by the injunction claimed to be authorized by subdivision 1. The relief demanded may be that sought by a simple suit at law. It may be *Page 654 relief by injunction; that is, an injunction suit brought most likely under authority of subdivision 3. The relief, unless clearly authorized by subdivisions 2 or 4, could only be such relief as may be granted only where there exists no adequate remedy at law. In other words, the relief demanded must be such relief as may be granted at the end of the suit without any reference to plaintiff's right given by subdivision 1 to restrain some prejudicial act in reference to the relief sought.
What is meant by the requirement that the relief demanded must be such that the applicant is entitled to it? The purpose of the suit is to have an adjudication that plaintiff is entitled to it. The requirement necessarily means, I think, that the facts claimed by the applicant to entitle him to the relief demanded must be such that, if established according to his contention, would, as a matter of law, entitle him to the relief sought. If plaintiff's petition averred facts which, if true, entitled him to relief, and if, in addition thereto, it was shown that some party to the suit was doing or threatening some act which, if not restrained, would render the relief ineffectual, his right to an injunction restraining the prejudicial act would be shown prima facie. If the defendant appealed without making a motion to vacate the injunction, in testing the authority of the court or judge to restrain the act, the facts alleged in plaintiff's petition would be taken to be true. If the court or judge declined to issue the injunction without a hearing, the plaintiff would be under the burden of proving the facts to show he was entitled to the relief demanded, as well as to show that such relief required the restraint of some prejudicial act. If the injunction were granted without hearing, and defendant, upon a motion to vacate, proved the nonexistence of any material fact necessary to show a cause of action, or, of course, lack of prejudicial act, etc., the injunction would be dissolved. According to this interpretation of subdivision 1, its general purpose is the same as subdivision 2. I can think of but two differences between them. The right to injunction given by subdivision 1 is available contemporaneously with the filing of the suit, and at no other time. That under subdivision 2 is available only when there is a pending suit. Under subdivision 1, plaintiff must, in addition to the facts which he may claim to constitute an act prejudicial to him, also prove the facts to show that he is entitled to the relief demanded. This, as said before, he may do prima facie by the sworn allegations of his petition. As to subdivision 2, I am of the opinion that "pending litigation" does not necessarily include the presence of a pleading good against general demurrer. In such case, the actual pendency of a suit instituted without any claim, at the time, to injunctive relief, would be the legal equivalent of the pleading and proof of facts to show a cause of action necessary under subdivision 1. The right to injunctive relief would not be dependent upon whether plaintiff's pleading seeking the relief to which the injunction was merely incidental was in all things sufficient to state a cause of action. Wright v. Wright, 3 Tex. 168; Dakan v. Dakan (Tex.Civ.App.) 53 S.W.2d 682. The Legislature evidently deemed the actual pendency of such a suit as sufficient warrant of good faith to entitle the litigant to an injunction to restrain such acts as he could show would tend to render the judgment sought ineffectual.
The ground of my concurrence in the judgment in this case is that, as I see it, plaintiff did not show by the facts alleged in its petition that it was entitled to the relief demanded. A fair construction of plaintiff's pleading is that it alleged that it had the title to, and possession of, the cotton at the time the suit was brought, and the only relief demanded, other than the injunction itself, was to have a judgment confirming and quieting such title and right of possession as against the claims of the defendants. It was in effect a suit to quiet title to personal property, the possession of which was at the time in the plaintiff under a claim of ownership. No such right of action exists. A right of action to remove cloud from title or to quiet title is limited to the title and possession of land.
If by any liberality of construction "the relief demanded" could be construed to be the recovery of the possession of the cotton from the defendants, then no facts were alleged to show that plaintiff was entitled to the relief claimed, in that the petition failed clearly and certainly to allege that possession was in the defendants. To be entitled to that relief, the fact was essential that defendants had the possession and the plaintiff did not. Plaintiff alleged "that on the 21st day of November, 1933, and at all times since plaintiff herein was the owner and in possession of said cotton * * * that * * * West Texas Utilities Company caused * * * Burl Wheeler, Sheriff, as aforesaid, to levy upon" said property "* * * that the defendant Sam Swann * * is * * * claiming some interest in said cotton, but that in fact said *Page 655 defendant has no interest in said cotton in any capacity." (Italics ours.) A part of the prayer for the injunction was that it be issued "enjoining and preventing each and all of the defendants herein frommolesting or removing said cotton out of the County and from in any wisedisturbing plaintiff's possession thereof." (Italics ours.) The prayer for relief on final hearing was "that further upon a final hearing hereof plaintiff have judgment against each and all of the defendants confirmingand quieting its title to the above described cotton, free and clear fromany and all claims, liens or demands on the part of defendants, or any ofthem." (Italics ours.) The petition begins by averring that plaintiff at all times has had possession of the cotton. The prayer is to restrain the defendant from disturbing plaintiff's possession, wholly inconsistent with the possession being then in the defendant. The prayer for final relief, viz., "confirming and quieting its title to the cotton," was wholly inconsistent with the theory that plaintiff was seeking to recover a lost possession. True, it was alleged that the execution had been levied upon the cotton by the sheriff. Is that the equivalent of a positive averment that the sheriff had taken the possession of the cotton away from the plaintiff? I do not think so. But, if so, then the fact of possession was not certainly averred, since a material fact both affirmed and denied not in the alternative amounts to no averment of the fact. In such case there is no pleading sufficient to support proof of the fact. That a pleading is insufficient to state a cause of action where the averment of material facts is contradicted by other allegations in the same plea or count is an elementary principle of law. Townes, Texas Pleading, p. 425; Hillebrant v. Booth, 7 Tex. 499; Steinback v. City of Galveston (Tex.Civ.App.) 41 S.W. 822; Barry v. Screwmen's Benevolent Ass'n, 67 Tex. 250, 3 S.W. 261; Kynerd v. Security Nat. Bank (Tex. Oiv. App.) 207 S.W. 133; Rowe v. Horton, 65 Tex. 89. Had the petition certainly averred that the defendants had taken possession of the cotton from plaintiff, and the pleading otherwise certainly asserted a good cause of action for the recovery of such possession, I am of the opinion that plaintiff did allege sufficient facts to show a threatened act prejudicial to the plaintiff, and the restraint of which was required, viz., the threatened act of selling the cotton before the issues tendered by the suit could be tried. The remedy of trial of the right of property was one as between which and his remedy by direct suit to recover possession of the cotton he had an election. Having elected to sue for possession if, just because the other alternative remedy was available, he could not have an act restrained which would make that remedy futile, it would in effect be a denial that he ever had any real right to the election of remedies. I do not believe that any decision will be found in conflict with the views above expressed. The confusion has resulted mainly from repeated attempts to accomplish the ultimate purpose of a lawsuit by means of injunction. The statute relating to injunctions no more authorizes that than did the rules and principles of equity prior to the enactment of the statute.
If the majority opinion is correct, then if A, the owner of a building, brings suit to recover possession thereof against the tenant, who refuses at the end of his term to yield possession, and who has hired contractors and proposes to so change the building as to materially impair its value, he cannot have such act restrained by injunction pending the suit because R.S. 1925, art. 6840, gives him a full and adequate remedy at law by sequestration. I do not believe that the right to injunctive relief in such a case is so restricted.