Legal Precedents and Principles in Oregon Injunction Cases, Study notes of Law

Download Legal Precedents and Principles in Oregon Injunction Cases and more Study notes Law in PDF only on Docsity! Chapter 32 Injunctions Chapter 32 NOTES OF DECISIONS The provisional remedy of injunction is a procedural matter entirely within the control of the legislature. Heit- kemper v. Cent. Labor Council, ( 1921) 99 Or 1, 192 P 765. 32.010 NOTES OF DECISIONS A preliminary injunction should not anticipate the ulti- mate decision of the question of rights involved but should merely preserve the status quo until a hearing on the merits is held. Helm v. Gilroy, ( 1891) 20 Or 517, 26 P 851; Livesley v. Johnston, ( 1904) 45 Or 30, 76 P 13; American Life Ins. Co. v. Ferguson, ( 1913) 66 Or 417, 134 P 1029. When a party to an injunction doubts its significance or extent, he is not to disobey it with a view to test it in this particular, but he should apply to the court for a modifica- tion or for instructions. Wells, Fargo & Co. v. Ore. R.R. Nay. Co., (1884) 9 Sawy 601, 19 Fed 20. A preliminary injunction does not ordinarily partake of the nature of a final judgment or decree to such an extent as to warrant an appeal therefrom but a refusal of an injunction coupled with final relief on the merits may be final. Helm v. Gilroy, ( 1891) 20 Or 517, 26 P 851. Grant or refusal of a preliminary injunction rests largely in discretion of the court. Id. An interlocutory injunction operates in personam. Gobbi v. Dileo, ( 1911) 58 Or 14, 111 P 49, 113 P 57, 34 LRA( NS) 951. An interlocutory injunction does not determine the merits of the case or the rights of the parties, and does not change the possession of real or personal property, the title to which is in dispute. Id. A preliminary injunction is destroyed by a decree dis- missing the suit, notwithstanding an appeal by plaintiff therefrom. Dimick v. Latourette, ( 1914) 72 Or 231, 143 P 896. This discretion is not an arbitrary one and it must be exercised in accordance with the principles of equity and good conscience. Coopey v. Keady, ( 1916) 81 Or 218, 139 P 108. Objective certainty is desirable in framing an injunctive decree. State Sanitary Authority v. Pac. Meat Co., ( 1961) 226 Or 494, 360 P2d 634. The complainant is entitled to no greater relief than was demanded in the complaint. Id. The taking of .an appeal from the decree granting an injunction and the giving of supersedeas bond did not render defendant immune from obedience while the appeal was pending, or from prosecution for contempt for a viola- tion. Treadgold v. Willard, ( 1916) 81 Or 658, 668, 160 P 803. FURTHER CITATIONS: Nelson v. Smith, ( 1937) 157 Or 292, 69 P2d 1072; American Smelting & R. Co. v. Bunker Hill Sullivan Min. & Concentrating Co., ( 1918) 248 Fed 172;. Atkinson v. Bernard, Inc., ( 1960) 223 Or 624, 355 P2d 229; Diercks v. Hodgdon, ( 1964) 237 Or 186, 390 P2d 935. ATTY. GEN. OPINIONS: As to the right of a court to require a specific act, 1930 -32, p 527. LAW REVIEW CITATIONS: 1 EL 84. 32.020 NOTES OF DECISIONS 1. In general 2. The undertaking 1. In general It is imperative that an undertaking be required before allowing an injunction pendente lite. Henderson v. Tilla- mook Hotel Co., ( 1915) 76 Or 379, 148 P 57, 149 P 473; Nelson v. Smith, (1937) 157 Or 292, 320, 69 P2d 1072. Injunction may issue after commencement of suit and. before service of summons. Breese v. Bramwell, ( 1921) 102 Or 76, 201 P 729; Forte v. Page, ( 1943) 172 Or 645, 143 P2d 669. The dissolution of an injunction is a technical breach of the injunction bond and the defendant may recover nominal damages. Stone v. Cason, ( 1854) 1 Or 100. An undertaking for costs and disbursements and damages limited to a stated sum does not limit the costs and dis- bursements to that sum. Officer v. Morrison, ( 1909) 54 Or 459, 102 P 792. This chapter is applicable to the Supreme Court when it exercises its power to issue a temporary injunction, and it should allow the writ only on the filing of the undertak- ing. Livesley v. Krebs Hop Co., ( 1910) 57 Or 352, 97 P 718, 107 P 460, 112 P 1. A bond for injunction which restrains a defendant from cutting, removing or disposing of wood on land in his pos- session, does not cover a loss of timber sustained by the removal thereof by strangers pending the suit. Gobbi v. Dileo, ( 1911) 58 Or 14, 111 P 49, 113 P 57, 34 LRA( NS) 951. If there was no issuance or service of an injunction order, defendant on obtaining a dissolution of the injunction could not recover on the bond any damages sustained. Id. An injunction without a bond conformable to statute is wholly void and disobedience is not a contempt. State v. LaFollette, ( 1921) 100 Or 1, 196 P 412. A bond which recites that the injunction has been grant- ed, creates liability from issuance and service of the injunc- tion order. Id. The dismissal of an injunction suit by agreement of the parties, entered into without consent of the sureties does not create a liability against the sureties on an injunction bond. Janssen v. Shown, ( 1931) 53 F2d 608. 2. The undertaking If the injunction is wrongful, attorney' s fees expended in procuring the dissolution are legitimate items of damage, even where paid on an unsuccessful motion to dissolve. Olds v. Cary, ( 1886) 13 Or 362, 10 P 786; Reed v. Brandenburg, 1914) 72 Or 435, 143 P 989. In an action for wrongful injunction, the remedy is at 302 0 law either on the bond or in case for tort Ruble v. Coyote Gold & Silver Min. Co., ( 1881) 10 Or 39. In the absence of malice and want of probable cause, a person injured by an improperly issued preliminary in- junction is limited to his remedy upon the undertaking. Id. Where the injunction was only ancilliary to the principle suit, reasonable counsel fees for obtaining its dissolution are recoverable as part of the damages; but where the injunction is the sole relief sought by the suit, no such item is allowable unless the party can show that it was put to extra expense on account thereof. Olds. v. Cary, ( 1886) 13 Or 362, 10 P 786. In an action upon an undertaking, a complaint should allege that the injunction was wrongful or without suffi- cient cause, but that defect is waived by answering to the merits. Id. A bond, in accordance with this section, covers not only the damages until the injunction is made permanent but all damages up to the time of dismissal by the Supreme Court Moore v. Lachmund, ( 1911) 59 Or 565, 117 P 1123, Ann Cas 1913C, 1272. An injunction bond running to several parties will still be liable to one party individually where that party acquired the interests of all the rest. Id. Where the order of injunction was dismissed, the trouble given to the plaintiff, the time and money expended by him in procuring vacation, and the injury to his business were legitimate items of damage. Reed v. Brandenburg, ( 1914) 72 Or 435, 143 P 989. In an action on an injunction bond, plaintiff must identify the goods he refrained from selling as those mentioned in the injunction order. Id. No undertaking is necessary in obtaining a permanent injunction. Kern v. Gentner, ( 1945) 176 Or 479, 159 P 2d 190. FURTHER CITATIONS: Warren Constr. Co. v. Grant, 1931) 137 Or 410, 299 P 686, 2 P2d 1118. 32.030 NOTES OF DECISIONS The Supreme Court has the power to issue temporary injunctions, upon the filing of an undertaking, to exercise its appellate jurisdiction. Livesley v. Krebs Hop Co., ( 1910) 57 Or 352, 97 P 718, 107 P 460, 112 P 1. Service is dispensed with where defendant appeared and contested the granting of the order, though he was not personally present when it was actually entered. Reed v. Brandenburg, ( 1914) 72 Or 435, 143 P 989. 32.040 NOTES OF DECISIONS 1. In general 2. Discretion of the court 3. Public welfare and convenience 4. Temporary or permanent injunction 5. Mandatory injunction 6. Sufficiency of the pleadings 7. Rights of plaintiff 8. Parties 1) Joinder 2) Necessary 9. Substantial necessity of injunction 10. Appellate court 11. Actions and suits enjoinable 12. Breach of agreement 13. Criminal prosecutions 14. Eminent domain 15. Invalid judgments and executions 16. Nuisances 32.040 17. Official duties and acts 18. Special assessments and taxes 19. Trespass 20. Unfair competition 21. Waste 22. Appeal 1. In general The issuance of a restraining order is a judicial act. State v. Jacobs, ( 1884) 11 Or 314, 8 P 332. To issue an injunction which must necessarily destroy property is against the policy of a court of equity. Linn County v. Calapooia Lbr. Co., ( 1912) 61 Or 98, 121 P 4. The issuance of an injunction should be restricted to the protection of property and to prevent wrongs for which no adequate remedy is provided by law. Moreland Theatres Corp. 'v. Portland Moving Picture Mach. Operators' Protec- tive Union, ( 1932) 140 Or 35, 12 P2d 333. 2. Dlseretton of the court The enjoining of a subsequent appropriator of water to prevent the diminution of the supply to the first claimant is discretionary. Mann v. Parker, ( 1906) 48 Or 321, 86 P 598. Where the plaintiff can show no injury from the acts complained of, an injunction will not be issued. Id. 3. Public welfare and convenience Where the enjoining of a particular act might seriously affect the public, the injunction is usually denied. Booth - Kelly Lbr. Co. v. Eugene, ( 1913) 67 Or 381, 384, 136 P 29. Injunction was granted against use of a sewer across plaintiffs land notwithstanding public inconvenience, when it was constructed without consent, without plaintiffs knowledge, without condemnation and compensation and after plaintiff voiced his disapproval to the city. Fraser v. Portland, ( 1916) 81 Or 92, 158 P 514. 4. Temporary or permanent injunction If the legal title to land involved is in issue and the equitable jurisdiction is challenged, the injunction will not be made perpetual until the legal title is settled. Norton v. Elwert, ( 1895) 29 Or 583, 41 P 926. But see Bishop v. Baisley, ( 1916) 28 Or 119, 41 P 936. If the plaintiff presents a prima facie possessory title that is not seriously disputed, equity will settle the entire con- troversy without waiting for the proceedings at law. Bishop v. Baisley, ( 1916) 28 Or 119, 41 P 936. An injunction to prevent a repetition of the trespass was properly made perpetual upon a showing that irreparable damage would otherwise result. Mathews v. Chambers Power Co., ( 1916) 81 Or 251, 159 P 564. 5. Mandatory injunction A state or a municipal corporation may maintain a suit for a mandatory injunction to compel the removal of ob- structions from public streets, independent of a criminal statute. Bernard v. Willamette Box & Lbr. Co., ( 1913) 64 Or 223, 129 P 1039. A judgment creditor is not entitled to mandatory injunc- tion to compel the debtor to apply to the debt a distributive share in a decedent' s estate, where it is not shown that execution against the share would fail to satisfy the debt. Malagamba v. McLean, ( 1918) 89 Or 302, 161 P 560, 173 P 1175, 1177. Mandatory injunctions should be issued only in extreme cases where the right to such relief is clear. State v. Mart, 1931) 135 Or 603, 283 P 23, 295 P 459. 6. Sufficiency of the pleadings Where a motion for injunction is submitted on complaint and answer and the answer denies all the equities of the 303 32.040 v. Chamberlain, ( 1916) 81 Or 163, 158 P 664, Ann Cas 1918C, 330. Plaintiff, seeking to enjoin malicious abuse of execution pending appeal from the judgment, must prove a levy sub- sequent to the notice of appeal and an undertaking to supersede the judgment. Hume v. Rice, ( 1917) 86 Or 93, 167 P 578. Where judgment was upon an unauthorized appearance, injunction may issue regardless of whether the attorney was responsible financially or acted by collusion. Handley v. Jackson, ( 1897) 31 Or 552, 50 P 915, 65 Am St Rep 839. 16. Nuisances A private person must allege and prove that he has sus- tained some private, direct damage other than that suffered by the public. River overflowing if dam was built, Esson v. Wattier, (1893) 25 Or 7, 34 P 756; fumes from city garbage dump, Wilson v. Portland, ( 1936) 153 Or 679, 58 P2d 257; sewage and factory waste In fishing area, Columbia R. Fishermen' s Protective Union v. City of St. Helens, ( 1939) 160 Or 654, 87 P2d 195. When a public nuisance especially injures a person in a manner distinct from that suffered by the public, such person may sue in equity to restrain its continuance. Dues - ter v. Alvin, (1915) 74 Or 544, 145 P 660; Columbia R. Fisher- men's Protective Union v. City of St. Helens, ( 1939) 160 Or 654, 87 P2d 195. Equity has concurrent jurisdiction over a continuing nui- sance and may abate it by injunction without the injured party first obtaining a judgment at law as a condition precedent. Bourne v. Wilson -Case Lbr. Co., ( 1911) 58 Or 48, 113 P 52, Ann Cas 1913A, 245. The use of a building as a barn will be enjoined where it appears that it is located in a residential district and is a nuisance there. Templeton v. Williams, ( 1911) 59 Or 160, 116 P 1062, 35 LRA(NS) 468. Injunction will not be issued to compel the removal of a dam not a nuisance per se which may cause slight over - flows upon a highway, where it appears that at most it would not be necessary to entirely remove the dam. Linn County v. Calapooia Lbr. Co., ( 1912) 61 Or 98, 121 P 4. A private party cannot enjoin a public nuisance, unless his detriment is irreparable or not fully compensable in damages. Bernard v. Willamette Box & Lbr. Co., ( 1913) 64 Or 223, 129 P 1039. A purpresture may be enjoined not only when it becomes a public nuisance but also where a private party has sus- tained or will sustain a special injury by it. Wessinger v. Mische, ( 1914) 71 Or 239, 142 P 612. The State Board of Health cannot enjoin a city from casting its sewage and drainage into a stream without evidence of use of the waters for domestic use or for live- stock. Smith v. Silverton, ( 1914) 71 Or 379, 142 P 609. The statutory penalty for polluting a stream is not a bar to a suit for injunctive relief. Columbia R. Fishermen' s Protective Union v. City of St. Helens, ( 1939) 160 Or 654, 87 P2d 195. A private party is estopped to sue a municipality for damages for special injury arising out of a public nuisance having its origin in the operation of a recognized govern- mental function for the general public good, when the operation with its attendant nuisance existed prior to his acquisition of property in its vicinity, when the nuisance causing the injury was known or should have been known to him at the time he acquired his holding and when the nuisance was not thereafter augmented beyond what might have been reasonably anticipated by him at the time he made his acquisition. St. Johns Shingle Co. v. Portland, 1952) 195 Or 505, 246 P2d 554. The state has the power to abate a public nuisance. State Sanitary Authority v. Pac. Meat Co., ( 1961) 226 Or 494, 360 P2d 634. The owner of a town lot suffered peculiar and special damages by the obstruction of part of a public street imme- diately in front of his premises preventing ingress and egress. Bernard v. Willamette Box & Lbr. Co., ( 1913) 64 Or 223, 129 P 1039. When water backed up on adjoining property because of a dam, an injunction was properly granted requiring the removal of that part of the dam causing the overflow. Dragset v. Mason, ( 1917) 84 Or 547, 164 P 376. 17. Official duties and acts The executive is not subject to control by the courts in the execution of duties requiring the exercise of judgment or discretion, or in political or governmental matters per- taining to and affecting the welfare of the people. State v. Lord, (1896) 28 Or 498, 521, 43 P 471, 31 LRA 473. Malfeasance in office does not justify equitable interfer- ence at the suit of a taxpayer. Sears v. James, ( 1905) 47 Or 50, 82 P 14. Where public officers under mere color and claim of right are proceeding to impair either public or private rights, or when their proceeding will result in injury to private citi- zens without any corresponding benefit to the public, or when the aid of equity is necessary to prevent a multiplicity of suits, an injunction will be allowed against them. Taylor Sands Fishing Co. v. State Land Bd., ( 1910) 56 Or 157, 162, 108 P 126. Injunction will not lie to determine whether commis- sioners of incorporated ports rightfully hold such offices. Bennett Trust Co. v. Sengstacken, ( 1911) 58 Or 333, 351, 113 P 863. Officers, constituting a board of commissioners for the sale of school and university lands, may be enjoined from an intended unlawful sale of tide lands already granted by the state. Corvallis & E. R. Co. v. Benson, ( 1912) 61 Or 359, 383, 121 P 418. Enforcement of the Workmen' s Compensation Act, even if unconstitutional, will not be enjoined at the suit of an injured servant where he could test the matter by bringing action either at common law or under the Employers' Lia- bility Act. Evanhoff v. State Ind. Acc. Comm. ( 1915) 78 Or 503, 154 P 106. The test of jurisdiction to enjoin acts of officers whose duties are of an executive or quasi judicial character is as to the nature of the specific act in question rather than as to the general functions and duties of the officer. Caples v. McNaught, ( 1934) 147 Or 72, 31 P2d 780. Performance of an executive act or one involving the exercise of judgment on the part of the officer will not be enjoined except in case of a clear abuse of discretion. Id. The proper remedy for obtaining reinstatement of a police force after wrongful discharge is by mandamus not injunc- tion. Moulton v. Logan, ( 1937) 157 Or 406, 72 P2d 64. I& Special assessments and taxes To restrain the collection of a tax, the facts presented must disclose some recognized head of equity jurisdiction or illegality of the tax. Oregon & Wash. Mtg. Say. Bank v. Jordan, ( 1888) 16 Or 113, 17 P 621; Yamhdl County v. Foster, (1909) 53 Or 124, 99 P 286. The plaintiff must have paid or tendered the amount which is admitted, or can be shown, to be legal, to authorize an injunction against collection of a tax. Goodnough v. Powell, ( 1893) 23 Or 525, 528, 32 P 396; Cannon v. Hood R. Irr. Dist., (1916) 79 Or 71, 154 P 397. Excessive valuation by an illegal method warrants in- junction against collection of the tax. Dalton v. City of East Portland, (1884) 11 Or 426, 5 P 193. The rule of equitable estoppel applies where a party has by some act consented to the improvement resulting in the assessment. Hawthorne v. City of East Portland, ( 1886) 13 Or 271, 10 P 342. 306 u In a suit by a taxpayer to enjoin the collection of an excessive assessment, the amount admitted to be due must be deposited with the court to keep the tender good. Welch v. City of Astoria, (1894) 26 Or 89, 37 P 66. To prevent cloud on title, equity will entertain a suit to restrain the sale of realty on void tax process. Hughes v. Linn County, ( 1900) 37 Or 111, 60 P 843. When the valuation is so grossly excessive that the as- sessor must know it is not just, an injunction may issue to prevent fraud on the taxpayer. Oregon & Calif. R. Co. v. Jackson County, (1901) 38 Or 589, 65 P 369. Equity will not ordinarily restrain the collection of public revenue for mere illegality or irregularity in the proceeding. Yamhill County v. Foster, (1909) 53 Or 124, 99 P 286. Injunction is the proper remedy where a tax is unauth- orized or where a multiplicity of suits might ensue. Kellaher v. Portland, (1911) 57 Or 575, 110 P 492, 112 P 1076. Injunction is proper to restrain a county sheriff from listing property for taxation, where the right to have such property left off the list depends on whether the property is subject to taxation. Callender Nay. Co. v. Pomeroy, (1912) 61 Or 343, 122 P 758. Ordinarily the collection of a special assessment for mu- nicipal improvements will not be restrained for mere ille- gality or irregularity. Wilson v. Portland, ( 1918) 87 Or 507, 169 P 90, 171 P 201. Where an assessment was without jurisdiction from the beginning, the property owners were not estopped from enjoining the collection because the work had been partly performed. Jones v. City of Salem, ( 1912) 63 Or 126, 123 P 1096; Dyer v. City of Bandon, ( 1914) 68 Or 406, 136 P 652. Where defendant city did not await the outcome of an appeal from an order erroneously denying an injunction against the city, but completed the improvements in ques- tion before the appeal was perfected, an assessment could not be sustained against the appellant for the improve- ments. Lais v. Silverton, ( 1917) 82 Or 503, 162 P 251. 19. Trespass A road supervisor acting in good faith cannot be enjoined from taking soil and gravel from neighboring lands for the repair of his roads. Kendall v. Post, ( 1879) 8 Or 141; Cherry v. Matthews, (1894) 25 Or 484, 36 P 529. The general rule is that a mere trespass or waste will not be enjoined, except where injury to the substance of the estate' is threatened and damage is irreparable. Haines v. Hall, ( 1888) 17 Or 165, 20 P 831, 3 LRA 609; Oldenburg v. Claggett, ( 1933) 142 Or 238, 20 P2d 234. Continuous successive trespasses, each comparatively unimportant in itself, with intention to continue may be enjoined. Stotts v. Dichdel, ( 1914) 70 Or 86, 139 P 932; Columbia R. Fishermen' s Protective Union v. City of St. Helens, ( 1939) 160 Or 654, 87 P2d 195. A plaintiff may bring an action for damages in an eject- ment proceeding and at the same time maintain a suit for injunction against further damage to the property. Waskey v. McNaught, ( 1908) 163 Fed 929. An injunction cannot be used to determine title to land. Hume v. Burns, ( 1911) 50 Or 124, 90 P 1009. Repeated trespasses which might grow into an easement may be enjoined. Chapman v. Dean, ( 1911) 58 Or 475, 115 P 154. Injunction lies to prevent a repetition of damages rea- sonably apprehended from threats to continue trespass on realty. Micelli v. Andrus, ( 1912) 61 Or 78, 120 P 737. Where the acts complained of have been performed in the entirety, an injunction will not lie. Weigand v. West, 1914) 73 Or 249, 144 P 481. Though the defendant claims the locus in quo as a public road in a suit to enjoin repeated trespasses, the trial of that issue at law is not such a complete and adequate remedy 32.040 as to bar equity. Stotts v. Dichdel, ( 1914) 70 Or 86, 139 P 932. But see, Tomasini v. Taylor, (1903) 42 Or 576, 72 P 324. An unauthorized sewer across one' s land is a trespass producing a continuing enjoinable wrong. Fraser v. Port- land, ( 1916) 81 Or 92, 158 P 514, 9 ALR 614. Altering and accelerating the flow and volume of. water was a continuing trespass to lands injured thereby. Ore- gon -Wash. R. & Nay. Co. v. Reed, ( 1918) 87 Or 398, 418, 169 P 342, 170 P 300; Stephens v. Eugene, ( 1918) 90 Or 167, 175 P 855. The cutting and removal of protective brush and timber on a swale across plaintiff's premises, which would permit a river to erode plaintiffs premises, was enjoinable. Math- ews v. Chambers Power Co., ( 1916) 81 Or 251, 159 P 564. The removal of cordwood without owner's consent was enjoined. Sandy Holding Co. v. Ferro, ( 1933) 144 Or 466, 25 P2d 561. 20. Unfair competition Injunction is a proper remedy to protect one' s trade name and business from unfair competition. Danton v. Mohler Barber School, ( 1918) 88 Or 164, 170 P 288. Solicitation of customers of another party in violation of his contractual obligation to refrain therefrom may be enjoined. Snow Cap Dairy v. Robanske, ( 1935) 151 Or 59, 47 P2d 977. 21. Waste Where there is a privity of estate between the parties, the owner of real property may sue to restrain threatened or partly accomplished waste thereon. Sheridan v. McMul- len, ( 1885) 12 Or 150, 6 P 497; Bishop v. Baisley, ( 1895) 28 Or 119, 41 P 936; Elliott v. Bloyd, ( 1902) 40 Or 326, 67 P 202. A statutory bond in forcible detainer proceeding affords an adequate remedy at law for damages caused by seizing a crop pending the appeal. Wolfer v. Hurst, ( 1907) 50 Or 218, 91 P 366. 22. Appeal Appeal lies from a decree which not only denies a prelim- inary injunction but determines the rights of the parties. Helm v. Gilroy, (1891) 20 Or 517, 26 P 851. A peremptory mandatory injunction to perform an official act that constituted the whole relief asked dealt with a substantial right and was appealable. American Life Ins. Co. v. Ferguson, ( 1913) 66 Or 417, 134 P 1029. In a pure injunction suit where dissolution terminates the suit, appeal from the order will not be dismissed on defen- dant's motion before the final hearing. Birkemeier v. Mil - waukie, (1915) 76 Or 143, 147 P 545. FURTHER CITATIONS: Ladd v. Ramsby, ( 1882) 10 Or 207; Davenport v. Magoon, ( 1884) 13 Or 3, 4 P 299; Nicklin v. Hobin, ( 1886) 13 Or 406, 10 P 835; Putnam v. Webb, ( 1887) 15 Or 440, 15 P 711; Dawson v. Croisan, ( 1890) 18 Or 431, 23 P 257; White v. Espey, ( 1891) 21 Or 328, 28 P 71; McDon- ald v. Mackenzie, (1893) 24 Or 573, 14 P 866; Rector v. Wood, 1893) 24 Or 396, 34 P 18; Garrett v. Bishop, ( 1895) 27 Or 349, 41 P 10; West Portland Park Assn. v. Kelly, ( 1896) 29 Or 412, 45 P 901; Davis v. Silverton, ( 1905) 47 Or 171, 82 P 16; Andrews v. Donnelly, ( 1911) 59 Or 138, 116 P 569; Barnes v. Marshfield & S. R. Co., ( 1912) 62 Or 510, 124 P 672; Hendry v. Salem, ( 1913) 64 Or 152, 129 P 531; Carruthers v. City of Astoria, ( 1914) 72 Or 505, 132 P 899; Fellman v. Tidewater Mill Co., ( 1915) 78 Or 1, 152 P 268; First Nat. Bank v. Pac. Tel. & Tel. Co., ( 1916) 81 Or 307, 159 P 561; Stephens v. Eugene, ( 1918) 90 Or 167, 175 P 855; Winslow v. Fleischner, ( 1924) 110 Or 554, 223 P 922; Crouch v. Cent. Labor Council, (1930) 134 Or 612, 293 P 729. LAW REVIEW CITATIONS: 38 OLR 346, 347; 1 EL 84. 307 32. 050 32.050 NOTES OF DECISIONS The granting or refusal of restraining orders rests in the sound discretion of the court and this descretion must be exercised in accordance with the principles of equity and good conscience. Coopey v. Keady, ( 1916) 81 Or 218, 139 P 108. LAW REVIEW CITATIONS: 38 OLR 346. 32.060 NOTES OF DECISIONS The merits cannot be considered in passing on a motion to vacate a restraining order. Coopey v. Keady, ( 1914) 81 Or 218, 139 P 108. A restraining order reinstated on appeal from final decree which vacated it will not be dissolved because the merits of plaintiffs case are doubtful, if security has been required and no great inconvenience will be suffered. Id. Whether or not a justice of the Supreme Court who granted a temporary order staying an action at law abused his discretion is not involved on motion in the Supreme Court to dissolve it. Noyes- Holland Logging Co. v. Pac. Livestock & Lbr. Co., ( 1917) 84 Or 386, 165 P 236. In a case of urgent necessity, a judge need not notify the person proceeded against before a preliminary injunc- tion will issue. Forte v. Page ( 1943) 172 Or 645, 143 P 669. A complaint which prays for a decree declaring an act unconstitutional can be treated as a request for a declara- tory judgment, even though the purpose of the suit is to prevent injury to property rights. Miles v. Veatch, ( 1950) 189 Or 506, 220 P2d 511, 221 P2d 905. Where all parties in an action in ejectment are solvent, the court will not continue an injunction preventing the prosecution of the law action. Id. On appeal complaint could not be made of an order modifying a temporary injunction without notice where it appeared that plaintiff was entitled to no injunction. Wolfer v. Hurst, (1907) 50 Or 218, 91 P 366. An injunction against a nuisance by burning sawmill waste, which was too onerous in area covered, was modi- fied by permitting use of a suitable furnace or appliance which would prevent nuisance. Bourne v. Wilson -Case Lbr. Co., (1911) 58 Or 48, 113 P 52, Ann Cas 1913A, 245. A restraining order prohibiting the defendants from dis- posing of the land received on exchange should be dissolved where it was granted in aid of an action to recover the value of the land. Burggraf v. Brocha, ( 1915) 74 Or 381, 145 P 639. ATTY. GEN. OPINIONS: Status of preliminary injunction after dismissal of suit, 1956 -58, p 265. 308 C is