plaintiff and its employés, as alleged, was until it is found that one is entitled to the to prevent the removal of said paving and possession of property, the title to which is curbing by the plaintiff and its employés, in dispute, a temporary writ which will and in an action in the Cedar county district transfer the possession from one to the othcourt, styled E. Barr v. Brady Piatt, Sheriff, er, or otherwise interfere with the status in which the said E. Barr, one of the em- quo, will not be allowed. Hall v. Henninger, ployés of this plaintiff, had been arrested 145 Iowa, 230, 121 N. W. 6, 139 Am. St. Rep. as alleged in the petition herein, was dis-412; Railroad Co. v. Railroad Co., 116 Iowa, charged on the hearing in habeas corpus 681, 88 N. W. 1082; Railway Co. v. Railway from said arrest, and therein said prosecu- Co., 142 Iowa, 459, 119 N. W. 261; Wingert tions were held to be without merit, and by v. City, 134 Iowa, 97, 108 N. W. 1035, 111 N. reference the judgment, finding, and decree W. 432; Chamberlain v. Brown, 144 Iowa, of the court in said cause, filed in the Cedar 601, 123 N. W. 161. county district court on or about June 3, 1911, is made a part of this amendment and petition without setting out the same in full herein." And, after pleading all the proceedings in the cases, to which we have referred, they further stated that: By reason of said suits and the records therein, and other ways, the defendants had actual and constructive notice and knowledge of the fact that Snouffer & Ford had constructed said pavement and curbing, that it was unpaid for and unassessed, and that Snouffer & Ford were contending and seeking to recover compensation therefor, and that in that way and manner the said Snouffer & Ford claimed to own the pavement and curbing all since the time it was constructed by Snouffer & Ford to the present time.

* *

The prayer was not only for an injunction, but also for general equitable relief.

As already indicted, a temporary writ of injunction was issued, which was dissolved upon motion, and some of the defendants demurred to the petition as amended, and the demurrers were sustained. The appeal challenges the correctness of the rulings on the motion to dissolve and also on the demurrer to the petition as amended.

[1] I. We are well satisfied with the ruling on the motion to dissolve the temporary writ. It was granted without notice, and the effect thereof would have been to permit plaintiffs to proceed with the removal of the pavement and curbing without let or hindrance, before a hearing upon the merits of the controversy. By the time the case could reasonably have been brought on for hearing on the merits, the improvement would have been removed and it could not have been replaced; nor could the damages done by the removal thereof, in the event it were found the removal was wrongful, well have been measured by any known scale.

While courts have large powers in the matter of issuing writs and processes, they should exercise great care in granting temporary writs of injunction against the usual and ordinary processes of the law. Ordinarily these writs are to preserve the status quo or to save the plaintiff from great injury, which might arise before a trial upon the merits. There is no showing that plaintiff would suffer any damages by allowing the improvement to remain in the condition it was when the petition was filed, and, as a general rule,

[2] Again, it is unusual for courts of equity to restrain either criminal or quasi criminal proceedings. Home Bank v. Hicks, 116 Iowa, 114, 89 N. W. 103; Ewing v. Webster City, 103 Iowa, 226, 72 N. W. 511. Exceptions are made in cases where plaintiff's property would be placed in jeopardy, taken without due process of law, and perhaps in some others. Vide Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169; Brewing Co. v. Superior, 117 Wis. 297, 93 N. W. 1120; Austin v. Austin Cemetery Ass'n, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114. But this case does not fall within any of these exceptions. The improvement has been a subject of contention for nearly ten years, and it has not yet been determined that plaintiffs are the owners of or are entitled to remove the same. In view of the facts appearing of record, the trial court was right in dissolving the temporary writ of injunction.

II. The demurrer to the petition as amended presents much broader and more doubtful propositions. It is the general equitable one, and the only means we have for determining the exact grounds thereof is to consult appellees' brief made for this appeal. The trial court filed written opinion, but sustained the demurrers generally.

[3] Among other things, defendants say that plaintiffs' right to the pavement and curbing has already been adjudicated against them in some of the cases to which we have referred. But this cannot be so, for in none of the prior cases was there an issue as to who owned the material; nor were any of the parties, unless it be these defendants, contending that the improvement, or the materials of which it was composed, belonged to the plaintiff. In all the prior actions, plaintiffs were seeking to recover either the contract price, or the market value of the improvement on the theory that it had been constructed for the defendants or some of them, under contract, or that it had been accepted and used by them or some of them, and that by reason of that fact they should pay either the contract price, or the market value thereof. They were also insisting that assessments against abutting property should have been made by the city authorities, as provided by statute, and that they had either complied with their contract, or, in one of the cases, that they were ready to do so.

Marsh v. Fulton, 10 Wall. 676, 19 L. Ed. 1040; Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153; Wrought Iron Co. v. Utica (C. C.) 17 Fed. 316; Lee v. Monroe County, 114 Fed. 744, 52 C. C. A. 376; Chapman v. Douglas County, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Fordsville v. Postel, 121 Ky. 67, 88 S. W. 1065, 123 Am. St. Rep. 184.

the

Each and all of the defendants interested in | County v. Engle, 116 Ky. 594, 76 S. W. 382; this controversy were insisting that they were not liable to pay for the improvement, and it is conceded that plaintiff has not been paid therefor. If defendants have any right thereto, it is not because of an adjudication giving them the title or because they have paid for the same, and there has been no finding in any of the prior cases as to where the title was, or now is. So that there is no merit in the claim of former adjudication. Plaintiffs could not, in any of the prior cases brought by them, have injected a claim to ownership of and right to remove the property. Such an issue would not have been germane to the issues then tendered, and plaintiffs are not therefore concluded by reason of the rule that an adjudication set-ing of this term "fixture." As a rule, the tles not only the issues expressly made, but also all other issues necessarily involved, or which might have been introduced into the case. An examination of these prior cases and of the issues presented and determined is the only citation that seems to be needed in support of our conclusion here.

Appellees say, however, that this improvement, which was laid upon a public street, the fee title to which was in the city, was a permanent one, was intended to and did in fact become a part of the street, was so constructed as that it became a part of the realty and also an appurtenance to the abutting lots, and that for these reasons it cannot and should not be removed, even though the removal may be accomplished without injury either to the street or to the property owners. Both the city and the property owners have, at all times, refused to accept and pay for the improvement for the reason that it did not comply with the contract, and they have successfully contended that they cannot be held on quantum meruit.

The material going to make up the improvement belonged to plaintiffs, and they have not been paid therefor, so that, were they of the nature of personalty, they would ordinarily be removable. The close question here is whether or not, by reason of the nature of the improvement, plaintiffs are with out remedy, or, in other words, have no right to reclaim their property. Incident to that are some collateral questions, as laches, the statute of limitations, election of remedies, and, plaintiffs' rights under the contract. Some of these matters will be discussed as we proceed.

[4] As a general rule, one who furnishes goods or material to another, to be paid for when delivered and accepted by the vendee, may, in the event the vendee refuses to accept or pay for the goods, rescind the contract and recover back his goods; and this rule obtains even where the property is so annexed to land as to become a part thereof upon acceptance, provided the removal may be made without injury to the property to which it has been annexed. Harrison Coun

[5] Appellee relies, however, upon thought that, as this property became permanently attached to the real estate, it was, although not accepted by the city or by any of the property owners, what the law denominates a fixture, and that it cannot be removed by the plaintiff.

Some confusion has arisen over the mean

question only arises where the party making the annexation is claiming the right to remove property which he had annexed to a freehold against a stranger to the original contract. In other words, the doctrine of fixtures applies, as a rule, to chattels annexed to a freehold in actions between vendor and vendee of the real estate, landlord and tenant, mortgagor and mortgagee, the seller of the fixture and a purchaser, mortgagee, or creditor of the freeholder. As a rule, the owner of land and the seller of personal property may make any agreement they choose regarding personal property to be annexed or attached to the land. Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Taft v. Stetson, 117 Mass. 471; Melhop v. Meinhart, 70 Iowa, 685, 28 N. W. 545; Walton v. Wray, 54 Iowa, 531, 6 N. W. 742; Frey v. Brick Co., 104 Iowa, 494, 73 N. W. 1051. A different question arises when rights of third parties intervene, and the subject of fixtures then becomes of great importance.

[6] Neither the city of Tipton, nor the abutting property owners, ever accepted the pavement as being in compliance with the contract. On the contrary, they have, at all times, insisted that it was not constructed according to specifications, and they have persistently refused to pay. Of course, neither was obliged to reject the improvement or to offer to return the same. See Exhaust Ventilator Co. v. R. R. Co., 69 Wis. 454, 34 N. W. 509, and cases cited.

[7] Nor could they be held liable on an implied contract or for quantum meruit, because of the use of the improvement. Snouffer v. Grove, 139 Iowa, 466, 116 N. W. 1056; Snouffer v. City, 150 Iowa, 73, 129 N. W. 345, Ann. Cas. 1912D, 414.

[8] And, following this rule to its logical conclusion, they could not be held liable for a conversion of the property in the event they sold their real estate without exempting the improvement from the covenants of warranty. Bowe v. Frink, 137 Iowa, 1, 114 N. W. 543.

[9] While it may be that trover or conversion will not lie for fixtures annexed or for

good condition as when placed in the road. This equitable rule should be and is applied in all cases where a party in good faith, as appellee did in this case, furnished material and erected an improvement on the property of another without authority."

v. Jones, 108 Mass. 191; Overton v. Willis- I have been removed and left the road in as ton, 31 Pa. 155; Russell v. Richards, 11 Me. 371, 28 Am. Dec. 532), yet it does not follow that the party making the improvement may not remove it, if he may do so without material damage to the street or to the property owner. These doctrines have been applied to improvements placed upon streets and And in Floyd County v. Owego Bridge Co., highways and on city property. Marsh v. the same court said: "But, we are asked to Fulton, 10 Wall. 676, 19 L. Ed. 1040; Lou- say that equity demands that we should hold isiana v. Wood, 102 U. S. 294, 26 L. Ed. that the county, having received the benefit 153; Chapman v. Douglas, 107 U. S. 348, 2 of appellee's work and acquired the bridges, Sup. Ct. 62, 27 L. Ed. 378; Bardwell v. should be required to pay for them. To apSouthern Works, 130 Ky. 222, 113 S. W. ply such a rule would be to disregard entire97, 20 L. R. A. (N. S.) 110; Floyd County v. ly all the principles of law applicable to Owego Bridge, 143 Ky. 693, 137 S. W. 237. counties or municipal corporations. In every In Marsh v. Fulton County, supra, it is case, then, liability would be imposed upon said: "The obligation to do justice rests up- the county, it matters not how it may have on all persons, natural and artificial, and, been created, for it could always be said if a county obtains the money or property of that it received the benefit of the work or others without authority, the law, independ- material furnished. The rule announced in ent of any statute, will compel restitution or Millikin v. Gillum, 135 Ky. 280, 122 S. W. compensation. But this is a very different | 151, does not apply to this case. There the thing from enforcing an obligation attempted bridge was accepted by the county. Here to be created in one way, when the statute the county refused to accept the bridge or declares that it shall only be created in an- in any way approve or ratify what the comother and different way." This language is missioners had done. The mere fact that quoted with approval in the City of Lou- the county accepted the deeds for all the isiana Case, supra. rights of way and approaches did not constitute an acceptance of the bridges. However, there is a rule which is applicable to this case. As was said by the Supreme Court of the United States in Marsh v. Fulton County, 10 Wall. 676, 19 L. Ed. 1040, the obligation to do justice rests upon all persons, natural and artificial, and, if a county obtain money or property of others without authority, the law, independent of any statute, will compel restitution or compensation. this rule, Floyd county will not be permitted to retain the bridges and not pay for them. Appellant having declined to pay for the bridges, appellee will be permitted to remove the bridges and all the material which it furnished in their construction. This is the only remedy the law affords appellee. City of Bardwell v. Southern Engine & Boiler Works, 130 Ky. 222, 113 S. W. 97, 20 L. R. A. (N. S.) 110; Floyd County v. Allen, 137 Ky. 575, 136 S. W. 124, 27 L. R. A. (N. S.) 1125."

In Chapman's Case, the Supreme Court of the United States, adopting the language of the California court, said: "The city is not exempted from the common obligation to do justice which binds individuals. Such obligations rest upon all persons, whether natural or artificial. If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation. Argenti v. San Francisco, 16 Cal. 282. The legal liability springs from the moral duty to make restitution."

In Floyd County v. Allen, the Court of Appeals of Kentucky said: "It appears in this case, however, that appellee, when the fiscal court refused to allow his claim, proposed to take the material used by him in the construction of the bridge out of the road and apply it to his individual use, and the fiscal court refused him this privilege and threatened to have him prosecuted if he did so. This was wrong. While appellee, under the statutes as construed, could not enforce his claim against the county, it had no right to refuse to pay him for it and hold the material furnished by appellee. He should have been permitted to remove the material if he could have done so without leaving the road in a worse condition than he found it when he undertook to repair it; and, as he was refused permission to take it, the county should pay him the reasonable market value of the material at the place it was situated at the time the fiscal court refused to allow him to take it, provided the material could

Under

Again, in Bardwell v. Southern Works, the same doctrine is announced. To this case, reported in 20 L. R. A. (N. S.), there is a valuable note referring to practically all the questions upon the subject: "In sustaining the right of a builder of a bridge, erected under an invalid contract with the commissioners of a county, to remove the same because of nonpayment of the purchase price, the court, in Lee v. Monroe County, 52 C. C. A. 376, 114 Fed. 744, said: 'While the law affords no remedy, equity, although it will not enforce the contract or create a contract between the parties on account of the acceptance and retention of the property, when the property is in existence, and in the hands of the defendant, will not allow it to retain that

ask your honorable body to order an assessment and issue certificates in payment for same to us, in city warrants as contract provides; and that same may be expeditiously done, we hereby notify you that we are ready and willing, and do hereby offer, to remedy any defects and reconstruct any portion of said pavement at our own expense, which your honorable body may point out or designate, and to complete all of said work up to the substantial requirement of our said contract. That the matters herein referred to may be speedily accomplished and performed, we request early action hereon, so that we may be advised and act accordingly."

to which it has no title whatever, and pre- | your city aforesaid, do hereby respectfully vent the owner from reclaiming it. The case presented by the bill shows no moral turpitude in the transaction, and, although the bridge company should have ascertained whether each step provided by the statutes had been properly taken, the law placed upon the defendant the duty of taking those steps. It was necessary for it to comply with every provision of the statutes in that behalf before entering into these contracts, and it represented to the bridge company that it had so complied, and thus misled the bridge company into entering into the agreement, the carrying out of which placed these bridges in the hands of the defendant. The complainant has no remedy at law, and to deny him equitable relief would be to enforce the contract on the part of the bridge company, and to allow the defendant to repudiate its part of the same contract, and thereby appropriate, without compensation, property to which it had no legal or equitable right."

The city did not respond to this notice by pointing out the defects complained of, and in one of the prior cases we held that this was not in time to justify a recovery against the city on the ground of quantum meruit, and, in the same case, it was held in effect that plaintiff was estopped from relying upon its offer of performance because of its attitude in former cases. We must, for the purposes of this case, treat the offer as bona fide, for the record would so indicate, and, while not sufficient to justify a recovery against the city because of failure to point

case as bearing upon the equities in plaintiff's favor. There never has been a finding that plaintiffs were lacking in good faith in making the offer to reconstruct, and, whilst they have been defeated in all their attempts to recover from the city, or the property owners, we do not think that the question of fraud or good faith has ever been adjudicated in such a manner as to defeat the present action to establish title to the materials which went into the improvement and to secure a decree authorizing their removal.

Indeed, there seems to be no departure from these cases in any of the decisions to which our attention has been called. The nearest approach to it is Bowe v. Frink, supra. But, as already noted, that was an action on quantum meruit, and also for conversion based upon the fact that the defend-out defects, it should be considered in this ant had converted a sidewalk, which he had refused to pay for, to his own use; his right to remove the walk was neither involved nor decided. Although language is used which tends to support appellees' claim that plaintiff herein had no right to remove the pavement, this language was used by way of argument, and is not binding as a precedent. But two conditions obtain on this right of removal, and the first is that it may be done without detriment to the property or only such detriment as will arise from the laying of a new pavement and gutter. The demurrer admits that the removal may be done without causing serious inconvenience or injury to any of the defendants, so that we need not, on this appeal, do more than accept the admission. Again, it must appear that plaintiffs were not guilty of fraud, and that failure to complete the contract was not due to any willful wrong on their part.

True, it has been found and adjudicated that the plaintiff herein did not comply with the terms of its contract, and that the work was never accepted and approved by the city, and no assessments have ever been made on account thereof. But the record also shows that on the 1st day of October, 1906, six days after the decision of the original Wingert Case, plaintiffs served upon the city the following notice: "We, the undersigned, having finished, as we believe, the pavement under our contract with the city of Tipton, Iowa, for the construction of pavement on Fourth street from the east line of Cedar street to the east curb line of East street, on Meridian street from the north line of Fourth

[10-12] Defendants also rely upon laches and the statute of limitations. As the defendants have not, until recently, been claiming title to the property or disputing plaintiff's right to remove the property, and as it was not finally decided that plaintiff had no remedy against either the city or the property owners until January 13, 1911, we do not think the statute has run against them, or that they have been guilty of such laches as would prevent a recovery. After their first defeat, they offered to reconstruct the improvement, if the city would point out the defects; and, upon failure of the city to do so, they brought suit against the city to recover the contract price; and even before that, although after notice to the city that they would repair and reconstruct, they brought suit against the property owners; both actions on the theory that, as they had offered to do all within their power, they were entitled to some relief. In all these actions they were defeated, and, until thus defeated, they would doubtless have no right to claim the pavement as their own. In any

be held guilty of such laches as defeats their to the contractor any neglect or disregard of action. Whether or not plaintiffs have been these specifications, but the right of final acacting in good faith and were free from ceptance or condemnation shall not be affectfraud and intentional wrong is a mattered by such inspection.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes