163 Ind. 330 | Ind. | 1904
Appellant, on July 8, 1895, instituted this action to enjoin appellees from running gas, water, and sewage-pipes from the second story of a certain brick building situated on the following real estate': Twenty-five feet off the north end of lot LTo. 53 in the city of Wabash, Indiana. The west part of these premises fronted on Wabash street, and the north line thereof abutted on' Market street.
The complaint, stripped of conclusions, etc., discloses the following facts: On November 10, 1863, appellant was the owner of the above real estate, and on that date he and one William S. Ludlow entered into a written contract — a copy of which was made a part of the complaint- — whereby it was agreed between them to erect a two-story brick building on said premises. The first story was to be erected and maintained by appellant, and the second story was to be erected and maintained by Ludlow. Eor the consideration, as recited in the contract, appellant covenanted as follows : “Doth covenant, as hereinafter set out, and bargain, sell, and convey unto the said Ludlow, his heirs and assigns, the free and uninterrupted use, as long as the building hereinafter mentioned shall stand, of the following described real estate, situate in. the county of Wabash and State of Indiana [describing it], to erect and maintain thereon, and use the same, ¡the second story of the brick building to be erected on said part of said lot by the said Christman and Ludlow. Also, the free and uninterrupted use of space sufficient in the south side of said building to erect, maintain, and usé the same, the stairway three and one-half feet in width in the clear, the stairway fox said stairs to extend
Under the terms and provisions of this contract appellant and Ludlow did erect a two-story brick building on said lot, and a stairway was constructed from Wabash street,, on the south side of the lot, to the second story, and was three and one-half feet wide in the clear. The first story and the basement of this building were occupied by appellant and his tenants up to the time of the commencement of this action. The upper, or second story, has been occupied by Ludlow and his grantees from the date of said contract until the institution of this action. In the year 1895 appellee Maurice S. Howe became the owner of said second story by purchase from the Masonic lodge, the latter having purchased it from Ludlow. At the time Howe became the owner the second story consisted of one large room. This he partitioned so as to make five rooms, which he fitted up to rent as offices. It is charged in the complaint “that in the construction of said stairs no part of the first-story room was occupied or used, except so much as was necessary to erect said stairway.” The complaint charges that on or about the 8th day of July, 1895, the defendant Maurice S. Howe wrongfully and without the license or consent of the plaintiff threatened, and was at the commencement of this suit threatening to and will, if not restrained by the order of the court, run and construct water, gas, and sewer-pipes from his said second-story room through the floor of said second story, about ten inches beyond the landing of the stairs on said second floor, and into plaintiff’s said first-story room, and against the south wall of said building, thence south along said south wall and underneath said Stairway until the same reaches the floor of said first-story
The prayer of the complaint is that the defendants be forever restrained and enjoined from maintaining any pipes in the said building, and that they be required to permit the building to remain as it was prior to the wrongs threat-1 ened and complained of, and that plaintiff’s title to said first-story room, the basement thereunder, and the spalce under said stairs, be forever quieted and put at rest.
Appellant, after the commencement of the action, filed what is termed a second paragraph, or supplemental com-, plaint, wherein it is alleged that, notwithstanding the commencement of this action, of which the defendant. Howe had notice, the latter has proceeded, over the objections of plaintiff, and placed the pipes in question as he had threatened to do, and that his said acts in so doing amount to a continuing trespass on the basement story of said building, which causes damage to the plaintiff, by reason of negligently permitting the water-mains and cldsets in the second story to overflow, and thereby flood the lower story of said building, etc. A temporary restraining order was granted, upon the complaint, which was subsequently dissolved.
A demurrer to the complaint was overruled, and the de
The errors assigned are based on the overruling of the demurrer to the second and third paragraphs of the answer, and denying appellant’s motion for a new trial.
The theory of the complaint apparently is to enjoin appellees from putting gas, water, and sewage pipes from the second story underneath the stairway to the basement, and thereby connecting such pipes with the respective mains in the public street. The second and third paragraphs of the answer are but argumentative denials. The second sets up and relies on the contract referred to in the complaint., and alleges; among other things, the necessity of having the room situated on the second story supplied with gas, water, .and sewage pipes, etc. The third alleges that the defendants are the owners of the free and uninterrupted use and enjoyment of the real estate described in plaintiff’s complaint. It is averred that under the cpntract in question they are seized of a perpetual title to said real estate without restriction. It is further alleged that by the conveyance made by plaintiff in said contract he conveyed to the defendants the free and uninterrupted use of a space on the south side of said building sufficient to erect, maintain, and use a stairway three and 'one-half feet in width in the clear, and that the said lot upon which the said building is located is situated in the very center of the business part of the city of Wabash, and is surrounded by business properties, in all of which there is the common use of gas, water, sewage, and closets by means of similar pipes; that the second story of said building is adapted to and is
The facts alleged in each of these paragraphs, so far as the same were admissible, could have been introduced in evidence under the first paragraph of the answer, which, as previously stated, was the general denial. By reason of the conclusion reached in this case we may dismiss the question as to whether these paragraphs of answer were sufficient to withstand appellant’s demurrer. If it be conceded that, under the facts averred in the complaint, appellant is entitled to equitable relief by injunction, nevertheless a consideration of the evidence fully discloses that the finding and judgment of the court denying the injunction was a correct conclusion.
It is further shown that the acts whi’ch appellant sought to enjoin had been fully committed after the commencement of the action, but before the time of the trial. As previously stated, appellant in his pétition prayed for an injunction, and that his title to the real estate and the basement of his story be quieted. The evidence apparently discloses that the very purpose of the action is to settle a disputed question in regard to the title or interest acquired by appellees, under the contract, in the realty upon which the building is situated. The law affords appellant an appropriate and adequate remedy for settling such a controversy. By the facfs in the case, as shown by the evidence, the question is fully presented -whether appellant is entitled to the interposition of a court of equity. Or, in other words, under the evidence, was he entitled to an injunction ? That he is not is fully decided and settled in the appeal of the Wabash R. Co. v. Engleman (1903), 160 Ind. 329. In that case it is said: “Of course, the right to invoke the jurisdiction of a court of equity must depend upon the peculiar or particular facts in each case, and one of the questions to be decided is whether the legal remedy under the particular circumstances of the ease is adequate, or, in other words, is such remedy as practicable and efficient to promote the interests of justice and its prompt administration as is the remedy in equity ? * * * The authorities affirm that the inadequacy of the legal remedy is the very foundation or indispensable prerequisite for the interposition of a court of equity, for the plain or evident reason that inasmuch as the law has provided a complete or adequate remedy for the redress of the particular wrong, therefore a court of chancery is not authorized to interpose its prerogative.”
As a general rule, in order to give a court of equity the
It follows that the judgment below was a correct result, and is therefore affirmed.