110 Ill. App. 395 | Ill. App. Ct. | 1903
delivered the opinion of the court.
First. The proof tends to show that the lake washes sand and gravel upon the strip from time to time, and the wind drifts sand thereon; that the sand and gravel have a merchantable value, and Mason was in the habit of removing and selling them both before and after the injunction; that when holes were dug in the sand for the purpose of removing it, the wind arid the lake would in the course of time refill them; that gravel not taken is liable to be washed away and buried by the lake, and sand not caught is liable to drift and be blown away. It was upon the gravel and sand which disappeared and were dissipated while the temporary injunction was in force that the second item was predicated.
There is no proof how much sand or gravel was on hand when the injunction issued or at any time while it was in force, or how much was taken out and sold during that time. Mason himself testified that he could not tell and that he kept no account except for eight or nine months “ about two years ago,” (he testified April 19, 1890). Ho books or account were offered in evidence. “ The children took the money and I took money and everybody took money; I think if I got half of it I was lucky.” “ There were no regular customers. Kept no account with any one.”
There is proof that the quantity of the sand and gravel on Band at any time was uncertain; it depended on whether there was wind, and its velocity and direction. For weeks and sometimes for a month no sand or gravel could be had. Frequently when the gravel (which was the more valuable) was washed in, it would be washed away by the action of the water unless at once removed. Both the sand and gravel were treated as public property. They were taken away without paying for them. One witness says :
“ They (meaning people generally) carted away hundreds of thousands of loads ” from the strip in controversy and the beach to the north and South of it. “ In regard to this strip they would get there at three o’clock in the morning and cart it away. It was denuded of sand from one end to the other.”
The only item of testimony savoring of certainty and of sufficiently specific character to afford a foundation for calculating the damages is that of Mason when he says that before the injunction he took in from §15 to §70 per day, and after the injunction “ the same, all the way from $15 to $40 per day.” This testimony was given nearly five years after the dissolution of the injunction, which perhaps accounts for the witness regarding $40'and $70 as the same. It is apparent that the witness had no data to base it on, and that it was but conjecture and surmise. When it is borne in mind that the winter season would naturally interfere with his operations, the amount assessed as damages under this head would seem to be sufficient.
The contention of counsel—not supported by any of the cases which they cite—that no definite proof from which damages can be computed is requisite, that the complainant having obtained an injunction which was dissolved occupies the position of a tort feasor, and that damages should be awarded upon that theory, is not tenable. The assessment should not exceed the damages actually sustained. Collins v. Sinclair, 51 Ill. 328. An injunction is not the act of the party applying for it, but the act of the court. It issues because the court is of opinion it ought to issue and so orders. Ho wrong is committed by the applicant although it be dissolved, unless he was acting maliciously and without probable cause. Here no such claim is put forward, and if it were there is no proof to sustain it; and if there were such proof it would not avail in this form of proceeding. Damages for the malicious suing out of an injunction can not be recovered in an action upon the injunction bond. So held in Burnap v. Wright, 14 Ill. 301, a suit on a ne exeat bond, the condition of which was substantially the same as that of the bond herein.
Second. For the injury to Mason’s lawn by the sand being blown thereon from the strip on account of his being enjoined from removing it, the complainant in the bill can not be made responsible. The proximate cause of the injury was the wind and not the injunction. The damages must be such as naturally result from the issuing of the writ; remote and speculative damages should not be taken into consideration. Burnap v. Wight, supra. They must always be the natural and proximate result of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the injury, the first must be considered as too remote. Schmidt v. Mitchell, 84 Ill. 195; Shugart v. Egan, 83 Ill. 56; T. W. & W. Ry. Co. v. Muthersbaugh, 71 Ill. 572.
Moreover, the damage to the lawn by reason of the injunction was impossible of ascertainment. The witnesses unite in testifying that the sand blew and for years had blown all over that country like snow. “ It was a wilderness of sand.” There is no way of determining from the proof how much sand was blown upon the lawn from the territory affected by the injunction and how much from the adjoining lands.
The decree is affirmed.
