(dissenting). I concur in the view that the erection of building, tanks, and pumps would not, in itself, entitle plaintiff to an injunction pendente lite, if entirely disassociated from the use intended. But the' record in this case discloses that the .construction and uses are inseparable, and are so intended' and .understood by defendants. The distinction suggested- is therefore purely academic, and should not be considered' of any importance in the determination' of this appeal. The decisive question is whether the trial court abused its discretion in granting the order appealed from. Subdivision i, § 2424, Rev. Code 1919, provides:
“An injunction may be granted in either of the following cases:
“x. When it shall appear by the complaint that the plaintiff is entitled to. the relief demanded, and such relief, or any part thereof, consists in restraining, the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff. * *
The acts sought to be enjoined in this case are the construction and use of the buildings, tanks, and’ pumps during litigation. This case, therefore, is clearly within the statute. It is conceded that “mere fear or apprehension that an act will be done” will not justify an injunction. But the doing of the act and the question, whether there is a probability of injury resulting therefrom, are quite distinct. Defen dans admit that they are constructing, and will use, the buildings, etc., for the pur*555poses alleged; hence the only question here is as to the probability of injury resulting therefrom to plaintiff or his property. The majority opinion is based upon the assertion that the evidence shows “that the operation of the proposed plant would not constitute a menace to plaintiff’s property.” The matter of increased insurance rates is, of course, immaterial, and is not a ground for injunction in itself. But the increased danger to plaintiff’s property and the safety of its employes is material. It is true that upon this question there was a conflict in the evidence, and it may be that even a preponderance in number of witnesses favored appellant’s contention. But that • fact is not controlling. The trial court, having before it all the evidence and the witnesses sworn and examined, reached the conclusion that the operation of the plant in the manner proposed! pending the litigation would probably endanger plaintiff’s property and the lives of its employes, and, in the exercise of the discretion which is eoncededly exercised by trial courts in such cases, the trial court saw fit to issue its injunction pendente. The rule is well settled that only a clear abuse of such discretion will warrant an appellate court in reversing such an order. In 14 R. C. L. 313 (.12) the law is thus stated:
“With the exercise of discretion by a trial court appellate courts will not ordinarily interfere, unless a right is (clearly shown to exist to which recognition has not been properly accorded in the lower courts, or there appears to have been a clear abuse of power. If there 'has been a reasonable showing made in support of the application in the court below, its action in granting an injunction will be sustained.”
I cannot concur in the majority opinion wherein it is held that—
“Where * * * the sole relief sought in the action is injunctional, and the pendente lite injunction asked for is, as it must be, based upon the very grounds upon which the permanent injunction is sought, the decision upon the- pendente injunction, while not final and res judicata as to the ultimate rights of the parties, should usually be a virtual determination as to What the final judgment would be under the same facts.”
This statement implies necessarily that the decision upon appeal in such case should be controlled by what appears to *556be the preponderance of the evidence, wholly eliminating- the element of discretion vested in the trial court; and this decision is a plain application of such a rule, for. the reason that the supposed preponderance of evidence in appellant’s favor is held decisive. This conclusion is 'wholly inconsistent with, the rule almost universally adopted by courts of highest authority, which is that — ■
“Where the pleadings and affidavits of the parties show a controverted state of facts, the court of original jurisdiction exercises its discretion in assuming one of two opposite versions of fact to be correct, and if this discretion leads to the' granting of a temporary injunction it will not he disturbed on appeal, unless it clearly appears from the complaint that the plaintiff cannot in any point of view be entitled to the final relief of injunction as demanded therein.” i Joyce on Injunctions, 212, § 117.
It is not even suggested in the majority opinion that—
“It clearly appears from the complaint that the plaintiff cannot in any view be entitled to the final relief of injunction as demanded therein.”
Hence it is unnecessary to discuss that question.
Plaintiff’s delay in seeking relief is suggested. This delay was explained in the evidence apparently to the satisfaction of the trial court, and need not be referred to here, for the reason that estoppel by laches is not the ground upon which the decision rests. The authorities in our own and in other states are so numerous and unfiorm and so easily accessible that a further discussion or citation of them, would be an idle task, and I shall not attempt it. I deem it my duty, however, to record, and to state briefly the grounds of, my dissent.
GATES, J., concurs in the dissent.