
    [Department Two.
    July 31, 1883
    PHILIP RICHARDS, Appellant, v. JOHN DOWER, Jr., Respondent.
    Injunction—Ibbepabable Injubt.—The solvency of a person who is about to construct a tunnel through the land of another does not affect the right of the latter to an injunction. The injury would be irreparable in its nature.
    Id.—Findings of Fact.—A finding that the injury would not be irreparable is inconsistent with a finding showing the permanent character of the tunnel.
    Id.—Discbf.tion—Review on Appeal The rule that the granting or refusing of injunctions involves the exercise of discretion which cannot bo reviewed on appeal except for the correction of abuses, has no application to a judgment granting or refusing an injunction after a final hearing on the merits. It applies more especially, if not exclusively, to preliminary injunctions,
    Appeal from a judgment of the Superior Court of Nevada County.
    The action was brought to enjoin the defendant from constructing a tunnel through a lot owned by the plaintiff in the city of Nevada. The construction of the tunnel was in progress at the commencement of the action, and extended about fifteen feet into the lot. It was twenty feet below the surface, and would pass when completed one hundred and fifty feet through the lot. The dimensions of the tunnel do not appear, but the court finds that it was being constructed for the purpose of working and developing a quartz ledge, and conveying away the rock and other matter therefrom. A preliminary injunction was granted, but on the final hearing, the injunction was dissolved, and a judgment rendered for the defendant. The additional facts are sufficiently stated in the opinion of the court.
    
      J. M. Walling, for Appellant.
    
      Johnson & Mason, for Respondent.
   Sharpstein, J.

The court found, that at the time of the commencement of this action, the defendant .had excavated and projected a tunnel under the lot of the plaintiff, a distance of fifteen feet, and was engaged in the further extension thereof, and threatened to continue the same, but that said tunnel has not affected, and will not, if completed, affect injuriously or otherwise the surface ground of plaintiff’s said lot. There is a further finding, that the driving of the tunnel was not and will not, if completed, cause the plaintiff irreparable injury or injure said lot in any way.” And another, “that the defendant is not insolvent.” And as a conclusion of law from the foregoing facts the court found that the defendant was entitled to a dissolution of an injunction previously granted, and ordered judgment to be entered to that effect. From that judgment the plaintiff appealed, and the questions which the record presents are: 1. Did the court err in its said conclusion of law? 2. Was the continuation or dissolution of the injunction, by the court which granted it, so much a matter of discretion as to preclude any interference here with the action of that court in the premises? As late as Mogg v. Mogg, Dick. 670, Lord Thurlow was unable to find a precedent for granting an injunction to restrain a mere trespasser from cutting timber on another person’s land. But in Flamang’s case, where a landlord of two closes, had let one to a tenant, who took coal out of that close, and also out of the other, which was not demised, the difficulty was whether the injunction should go as to both, and Lord Thurlow ordered it as to both; and on the authority of that case Lord Eldon, in Mitchell v. Dors, 6 Ves. 147, granted “an injunction against the defendant, who having begun to get coal in his own ground, had worked into that of the plaintiff.”

In Thomas v. Oakley, 18 Ves. 184, Lord Eldon expressed the opinion that it had then been settled in England that an injunction would be granted to restrain a mere trespasser from cutting timber, or taking coal or lead ore from another person’s land, and in that case he granted an injunction to restrain the defendant from removing stone from the plaintiff’s quarry, on the ground that the defendant was talcing the substance of the inheritance—removing that which was the plaintiff’s estate. He said the difference in value between stone and coal, or stone and lead ore could not be considered in that case. From which we infer that in his opinion the right to an injunction in such a case did not depend on the value of the substance which was threatened with removal, but upon the fact of its constituting the inheritance or estate of its owner. And in that light the kind or quality of the substance would be quite as immaterial as the value of it. And such we understand to be the rule in this State. In More v. Massini, 32 Cal. 594, the court says : “ The gravamen is a threatened trespass upon land. The trespass is in the nature of waste, and it will be committed unless the defendant is restrained. Should the threat be fulfilled, the plaintiff would be deprived of a part of the substance of his inheritance, which could not specifically be replaced. In the class to which this case belongs no allegation of insolvency is necessary. The injury is irreparable in itself.” (Citing Merced Mining Co. v. Fremont, 7 Cal. 322; Hicks v. Michael, 15 Cal. 116; Leach v. Day, 27 Cal. 646; People v. Morrill, 26 Cal. 360.)

The findings show that the tunnel which the defendant is constructing through the plaintiff’s land is of a permanent character. It disturbs the plaintiff’s possession, and if permitted to continue will ripen into an easement. That of itself is sufficient to entitle him to an injunction. (Poirier v. Fetter, 20 Kan. 47; Johnston v. City of Rochester, 13 Hun, 285; Williams v. N. Y. Cent. R. R.Co. 16 N. Y. 97.)

The finding that the injury is not irreparable is inconsistent with the findings which describe the character of the work which it is sought to have enjoined. “The injury is irreparable in itself,” and the solvency of the defendant is an immaterial circumstance.

The findings leave no room for doubt as to the plaintiff’s title to the premises, and that, coupled with the fact that the threatened injury is per se irreparable, entitles the plaintiff to the relief demanded in his complaint and we think the error committed by the court in dissolving the injunction should be corrected.

Cases of palpable error or abuse of discretion are excepted from the rule uncler which this court declines to interfere with the granting, refusing, continuing, or dissolving of injunctions; and that rule applies more especially, if not exclusively, to preliminary injunctions. We do not think that it applies to a case in which an injunction is continued or dissolved after trial and findings upon all the material issues.

In that case, as in any other in which the findings do not support the judgment, it should be reversed.

• Judgment reversed and cause remanded with directions to the court below to enter judgment on the findings, that the injunction issued in the first instance be perpetual, and that the plaintiff recover his costs.

Myrick, J., and Thornton, J., concurred.  