I concur in the order. It seems to me, however, that the discussion concerning the right of a court of equity to refuse an injunction where the injury resulting to the plaintiff from a denial of the relief would be far less than that sustained by the defendant if the injunction were granted, is applicable to a consideration of appeals on their merits, rather than to the question here involved. If the court may balance the extent of the losses to be suffered by the respective parties, it exercises its discretion in this behalf when it grants or refuses the injunction. In this case the lower court has determined that it was essential, or at least proper, for the protection of the plaintiffs' rights that the defendant should be restrained. We are not now reviewing the correctness of that determination. The petitioner cannot, of course, ask us in this proceeding to stay the force of the injunction on the ground that the trial court abused its discretion or that it erred otherwise in granting the injunction. What is claimed is that a suspension of the judgment "is necessary or proper to the complete exercise" of our appellate jurisdiction (Const., art. VI., sec. 4); it is claimed that a refusal to stay the injunction will so affect the subject of the controversy that, if the judgment should ultimately be reversed, the appellant will in large measure be deprived of the fruits of its successful appeal.
But we must consider the rights of the respondents, as well as those of the appellants. If the judgment of the court below is right, the plaintiffs are absolutely entitled to have the wrongful acts stopped, not only after the determination of the appeal, but pending the appeal. Under the findings the acts complained of are inflicting a continuing injury upon the plaintiffs and their lands, an injury of a kind which has always been regarded by courts of chancery as irremediable and not capable of adequate redress by damages. If the appellant may ask that it shall not lose the fruits of an appeal which may turn out to be meritorious, the respondents are in at least as good a position to demand that the appellate court shall not irrevocably take away from them the benefit which they have already won and which will be confirmed to them if the judgment *Page 256 should be sustained. The exercise of the appellate jurisdiction must contemplate the possibility of affirmances as well as reversals. I do not think a stay of execution can be said to be necessary or proper to the complete exercise of appellate jurisdiction when such stay can be granted only at the risk of destroying rights which will unquestionably belong to the respondent if the judgment of the lower court shall be affirmed. This will always be the situation in the case of an appeal from a judgment enjoining acts which are found to be destructive of the plaintiff's real property. I think, therefore, that in such cases, at any rate, this court should not undertake to suspend the force of a prohibitory injunction pending appeal. (Swift v.Shepard, 64 Cal. 423, [1 P. 493]. The statutory law gives no stay, and there should be none, unless the trial court, which is in the best position to weigh the respective equities, concludes to exercise its power (Pasadena v. Superior Court, 157 Cal. 781, [109 P. 620]) to suspend the injunction until the merits are finally determined.
It may be suggested, further, that the effect of an order by this court suspending the operation of a prohibitory injunction is to reverse, pro tanto, the judgment granting the injunction, and that in advance of a hearing on the merits. That this is so will appear more clearly if we suppose the case of an appeal from an order of the superior court granting an injunction pendentelite. In such case, an application for a suspension of the injunction pending the appeal could be urged upon precisely the same grounds as those here presented by petitioner. The thing decided by the trial court, in the case supposed, was that defendant should be restrained until a trial on the merits, or until that court should order otherwise. That conclusion is reviewable on appeal, but to suspend the order before a hearing of the appeal would clearly be to set aside the very thing decided below, viz., that the defendant should be enjoined until a trial or a further order. The situation does not differ where the injunction is embraced in a final judgment. There, too, it is a part of the adjudication that the defendant should be enjoined at once, and this adjudication should not be set aside on appeal before a hearing on the merits of the appeal.
Angellotti, J., and Shaw, J., concurred. *Page 257