Averill v. Vermont Valley Railroad, 88 Vt. 293

Averill v. Vermont Valley Railroad

88 Vt. 293 | Vt. | 1914

AVatson, J.

The orator’s brief states as the particular ground urged by him against the propriety of the cross-bill. *298that this suit in equity was brought for the sole purpose of aiding the suits at law by injunction, pending their determination.

The prayer of the original bill is for the specific relief by way of a temporary injunction restraining the defendant from committing further trespasses and depredations upon the orator’s property until the suits at law are tried and determined, and thereafter, if those suits be decided in his favor, that the temporary injunction be made permanent; and for general relief.

Under his general prayer, the orator may have relief agreeable to the case made by the bill. Danforth v. Smith, 23 Vt. 247; Eureka Marble Co. v. Windsor Mfg. Co., 47 Vt. 430; Coffrin v. Cole, 67 Vt. 226, 31 Atl. 313; Western Union Tel. Co. v. Bullard, 67 Vt. 272, 31 Atl. 286; Van Dyke v. Cole, 81 Vt. 379, 70 Atl. 593, 1103. The scope of the bill is therefore to be determined, not by the special prayer for particular relief, but by the case stated.

The bill alleges that the ownership of the land described for many years has been and now is complete in the orator -in fee simple, and that he and his predecessors in title have been in the actual, complete, and peaceable possession thereof since the organization of the town of Brattleboro; that the defendant threatened to destroy a large portion of said property, and on the two successive days named sent thereupon eight and six men respectively, who dug up, destroyed, and threw awáy a large amount of soil, dirt, and gravel there situate, of the value to the orator of the sum specified; that on each of said days the orator brought a suit in trespass against the defendant and its agents and servants for the trespasses thus committed on that day, which suits are now pending; that defendant threatened to commit further and continual trespasses and depredations on said land, and unless restrained from so doing it will repeat the said trespasses and depredations and cause the orator great, immediate, and irreparable damage for which he has no adequate remedy at law; by reason whereof he will be obliged to bring a great multiplicity of suits. Thus the allegations of the bill show such trespasses upon the orator’s land on two successive days by defendant, and threatened repetition thereof, as cause irreparable mischief, and is destructive of the substance of the inheritance. Under such circumstances, the owner of the property may come into a court of equity for relief. Smith v. Rock, 59 Vt. 232, 9 Atl. 551; Griffith v. Hilliard, 64 Vt. 643, 25 Atl. 427.

*299The cross-bill touches the matters in question in the original bill, and it is brought so that full relief to all the parties may be had. Therein defendant seeks a temporary and finally a perpetual injunction to stay the proceedings at law, a mandatory injunction directing the orator to remove, from the land in dispute, the retaining wall and the filling of dirt and stones, placed or caused to be placed thereon by him, also to pay damages resulting therefrom; adding a prayer of general relief. A proper case for a cross-bill is shown by the allegations therein, (Slason v. Wright, 14 Vt. 208; Rutland v. Pange, 24 Vt. 181; Van Dyke v. Cole, cited above,) and without a cross-bill affirmative relief to the defendant cannot be had. Ward v. Seymour, 51 Vt. 320; Blake v. Langdon, 19 Vt. 485, 47 Am. Dec. 701; Haskin v. Haskin, 55 Vt. 263. The orator says, however, that the title to the land is in controversy in the suits at law, but not in his bill in equity; that when the cross-bill seeks to bring in question the title to land it goes beyond its proper function and introduces new matter which makes it an original bill, and since as an original bill it could not be sustained because a court of law affords an adequate remedy, the cross-bill is demurrable. Yet the orator by the allegations of his bill, as seen, bases his right of relief upon his title to the land, which title is denied by the defendant in its answer and its own title thereto alleged. The defence by way of cross-bill is not different in this respect; but the defendant’s title and possession are therein alleged, also the putting of the retaining wall and the filling on the land, by the orator, to the irreparable injury of the defendant, and praying for affirmative relief, thereby making the form of the defence such as will permit a complete determination of the matter already in litigation in the court of equity.

Concerning the orator’s position that when title to land is in question an adequate remedy may be had in a court of law, we might content ourselves by saying that since the cross-bill pertains solely to matters growing out of the original bill, the defendant is not obliged to show any ground of equity to support the jurisdiction of the court. Mitf. Eq. Pl. by Tyler, 179; 3 Dan. Ch. Pr. (2d Am. Ed.) 1810; Story’s Eq. PI. §399. But we do not stop here; for as this Court has before said, “When it appears that the title is in dispute, the court may, in its discretion, issue a temporary injunction and continue it in force for such time as may be necessary to enable the orator to es*300tablish his title in a court of law, and may make the injunction perpetual when the orator has thus established his title; or the court may proceed and determine which party has the better title; or it may dismiss the bill and leave the orator to his legal remedy.” Griffith v. Hilliard, cited above. And in a proper case, a court of equity may, in its discretion, direct an issue to be tried by a jury. Dan. Ch. Pr. 1285.*

Decree reversed, demurrer overruled, cross-bill adjudged sufficient, and cause remanded to be proceeded in.