226 Ill. 15 | Ill. | 1907
delivered the opinion of the court:
It is insisted by counsel for appellee that the covenant in the lease is a negative covenant and a court of equity will restrain its. violation by injunction, even though no irreparable injury is shown. It is no doubt the rule that in respect to purely negative covenants annexed to or contained in contracts or leases, courts of equity frequently interfere by injunction and indirectly enforce specific performance of such negative covenants by prohibiting their breach; and it is equally well settled that where there is such an express negative covenant, courts of equity will entertain jurisdiction by injunction although the same will occasion no substantial injury, or even though the injury, if any, be recoverable at law. This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions or covenants as he may see fit touching the use or enjoyment of the land, and in case of the breach thereof he is not to be defeated by the opinions of any number of persons that he is not substantially injured thereby. But in order to give courts of equity jurisdiction on that ground the covenant must be a negative one and must be certain, and the use of the premises for a specific purpose must be clearly fixed by the agreement of the parties. If the negative covenant is only implied from a positive stipulation, courts are not so ready to lend their jurisdiction. (High on Injunctions, secs. 714-722; Consolidated Coal Co. v. Schmisseur, 135 Ill. 378; Star Brewery Co. v. Primas, 163 id. 652; Postal Telegraph Co. v. Western Union Telegraph Co. 155 id. 335.) The lease in question falls far short of coming within the rule announced in the authorities above cited. Its terms are as follows: “Party of the second part (appellant) to work out road tax and allow first party (appellee) to fall plow and haul out manure, second party to haul out manure and have twenty-five acres fall plowed at expiration of lease; * * * and first party reserves the privilege of plowing stubble ground after second party has secured grain, and right to enter for viewing, seeding, repairing or any other purpose.” The terms used are positive and affirmative, not only as to the rights of the appellee, but also as to those of the appellant. Each of them is to do certain affirmative acts named and there is no express covenant that either will refrain from doing any particular thing. There is no covenant or agreement that appellant will not interfere with appellee in her efforts either to plow the land or haul out the manure. The position of appellee must be, that inasmuch as appellant covenanted to allow her to enter for certain purposes there is an implied negative covenant not to interfere with her doing so. The terms here used are not negative and can only become so by implication, and if they can be so treated, many affirmative or positive covenants may be construed to be negative and a court- of equity given jurisdiction to enforce covenants either affirmative or negative. There is no negative covenant within the rule laid down by the authorities, and hence equity had no jurisdiction without proof of irreparable injury.
Can the bill be maintained upon the ground that appellee will be irreparably injured by reason of the failure to have the land plowed in the fall ? She alleged in her bill that appellant was insolvent and her loss would be irreparable unless equity intervened. An injury may be irreparable either from its own nature, as where a party injured cannot be adequately compensated therefor in damages, or when the damages which may result therefrom cannot be measured by any pecuniary standard, or when it is shown that the party who must respond is' insolvent and for that reason incapable of paying damages. (16 Am. & Eng. Ency. of Law,—2d ed. —361.) The mere allegation of irreparable injury, while it may be sufficient to give a court of equity jurisdiction upon the face of the bill, is not sufficient upon the final hearing unless sustained by proof. The evidence in this record is not, in our opinion, sufficient for that purpose. The damages caused by being prevented from plowing in the fall instead of the spring are, at most, uncertain or speculative, and, in fact, may not exist at all. They depend on many different elements, as shown by the evidence. The next year’s crop may be equally as good though the ground was plowed in the spring instead of in the fall. The season may be either too wet or too dry to produce any crop at all, or some other unforeseen condition may arise to prevent the growing of a crop no matter when the ground was plowed. These facts are well known and render uncertain any damages that may be sustained, much less to show irreparable damages. To show that damages are merely speculative is not sufficient to give a court of equity jurisdiction. They may be approximated in an action at law as well as in chancery. While this bill alleged that appellant was insolvent, that allegation was denied in the answer, and the evidence failed to prove it. On the contrary, there was proof that appellant had some property, though just how much does not appear. Even if she was insolvent- there was a surety on the lease, and in order to give a court of equity jurisdiction on the ground of insolvency it would have been necessary to show not only that the appellant herself was insolvent, but also that the surety was insolvent.
We think the court was without jurisdiction for the reason that appellee had a complete and adequate remedy at law. The lease expressly provided that if appellant failed to keep the covenants or should underlet the premises the appellee should have the right to declare the lease null and void and re-take possession, appellant to pay all costs, attorney’s fees and expenses arising from enforcing the covenants of the lease. If appellant refused to allow appellee to enter for the purpose of doing what the lease expressly provided she might do, appellant violated the terms of the lease, and appellee had her election to bring an action of forcible entry and detainer and thereby secure possession of the premises. This remedy, if applied, would have been summary, and could have been speedily enforced so as to have given appellee immediate possession, thus enabling her to do the fall plowing if she wished and avoiding any damage which might be occasioned by reason of appellant’s violation of the contract. It cannot be successfully contended that if there was an adequate remedy at law resort could be had to a court of equity.
We are not impressed with the justice and equity of the appellee’s cause, as shown by this record. She had no sufficient cause for bringing appellant into a court of chancery and subjecting her to the heavy expense of litigation there.
The judgment will be reversed and the cause remanded, with instructions to the trial court to dismiss the bill for want of equity.
Reversed and remanded.