STATE EX REL. ERVIEN V. BUDD, 1919-NMSC-028,
25 N.M. 313, 182 P. 863 (S. Ct. 1919)
STATE by ERVIEN, Commissioner of Lands,
vs.
BUDD
SUPREME COURT OF NEW MEXICO
Appeal from District Court, Chaves
County; McClure, Judge.
{*314} Action
by the State of New Mexico, by the Commissioner of Public Lands, Robert P.
Ervien, against Levi W. Budd, for injunction. Judgment for plaintiff on
demurrer, and defendant appeals.
Where a complaint shows on its face that the defendant is in
possession of certain lands, has inclosed them, is occupying and using them
without permission from the plaintiff, who claims to be the owner and entitled
to the possession, and that the defendant has refused to vacate and deliver
possession of the lands, plaintiff's remedy is in ejectment or an action of
forcible entry and detainer, a complaint showing the above facts states no
cause of action entitling plaintiff to injunctive relief, and the demurrer to
said complaint should be sustained.
Harold Hurd, of Roswell, for appellant.
Raynolds, J. Parker, C. J., and Roberts,
J., concur.
{1} The prayer of the
complaint in this case asks for an order on the defendant to "show cause
why a writ of injunction should not issue enjoining said defendant from further
occupancy of the land in question and further use and grazing thereof and from
further inclosing the same, and also why he should not abate the inclosure of
wire and posts now surrounding said land, and why he should not be required to
give peaceful possession of said land to the plaintiff, and that on his failure
to show cause why he should not do the several things recited he be perpetually
enjoined from doing them, or any of them, and that he be declared a trespasser
and directed to vacate said land."
{2} In the main body of the
complaint it is alleged that the defendant is in possession, has inclosed the
land, refuses to vacate, and is using the land without plaintiff's permission
or consent. Plaintiff claims to be the owner or entitled to the possession.
Inadequacy of the remedy at law by ejectment or by forcible entry and detainer,
or by the statutory remedy of trespass and waste under section 5226, Code 1915,
is not alleged, nor is any ground for the equitable remedy of injunction based
upon the inadequacy of the remedies at law, such as insolvency of the
defendant, continuing trespass, fraud in obtaining possession, or the like,
alleged in the complaint. A demurrer was interposed to this complaint on the
ground, among others, that it failed to state facts constituting a cause of
action. The demurrer was overruled, and, the defendant failing to plead
further, judgment was entered against him, and the injunction issued. From the
overruling of the demurrer and entering judgment
{*315}
in plaintiff's favor, which action is assigned as error, defendant appealed
to this court.
{3} The plaintiff evidently
seeks to substitute the remedy by injunction for the action in ejectment or the
action in forcible entry and detainer. It is only necessary to cite a few
well-known authorities to show that this cannot be done.
"An injunction will not be granted where the
remedy at law for the injury complained of is full, adequate, and
complete." 16 A. & E. Ency. (2d Ed.) p. 352, and cases cited.
"Where there is a choice between the ordinary
process at law and the extraordinary remedy by injunction and the legal remedy
is sufficient, an injunction will not be granted." Injunctions, 14 R. C.
L. par. 44.
"It is a rule of almost universal application
that an injunction will not issue to take property out of the possession of one
party and put it in the possession of another." Injunctions, 16 A. &
E. Ency. (2d Ed.) p. 364, and cases cited.
{5} For the above reasons it
is apparent that the lower court erred in overruling the demurrer and in
granting the relief prayed for in the complaint. The judgment is therefore
reversed, with instructions to sustain the demurrer and dismiss the complaint;
and it is so ordered.