48 Ind. App. 605 | Ind. Ct. App. | 1911
The complaint shows that by deed, duly executed by appellee and his wife to an agent of appellant, a strip of ground sixty feet wide was conveyed by appellee, and accepted and occupied by appellant as a right of way; that, as a part of the consideration for the conveyance, it was provided in the deed that the grantee should construct “a standard fence of woven wire, with barbs on top, sufficient to turn all kinds of stock and should permanently ihaintain a good and lawful fence.”
The complaint further averred that appellant was threatening and preparing to erect and maintain, at the place designated in the deed, a fence that was unlawful, and was insufficient to turn stock of all kinds; that the wires were of flimsy material, insufficient in size and strength, the spaces between them were too wide, and the posts were too far apart to make a good fence; that the fence should be not. less than four feet high, while the one to be erected was only forty-five inches high, and would be of little value to appellee, because it would not turn hogs and other stock he desired to pasture upon his land adjoining the right of way along which the proposed fence was to be erected; that the erection of said proposed fence would cause irreparable injury to appellee, and in violation of the terms of said deed; that appellant was insolvent.
Issue was joined by general denial. A trial by the court
The errors assigned are (1) the overruling of the demurrer to the amended complaint, (2) the failure of the amended complaint to state facts sufficient to constitute a cause of action, (3) the overruling of the motion for a new trial.
A demurrer for want of facts was filed to the original complaint. Pending the ruling upon the demurrer, an amended complaint was filed, but the demurrer was not refiled, though it was afterwards overruled and exception taken.
the amended complaint was the only one then before the court. Chicago, etc., R. Co. v. Stepp (1909), 44 Ind. App. 353; Scott v. LaFayette Gas Co. (1908), 42 Ind. App. 614; City of Vincennes v. Spees (1905), 35 Ind. App. 389.
The rule is firmly established in this State, that a party will be granted injunctive relief even though he may have a clear legal remedy, if the remedy at law is not as prompt, practical, efficient and adequate as that afforded by equity. The location of this proposed fence makes this rule peculiarly applicable here, for it is unreasonable to say that appellee’s remedy for damages, which would be available after his stock had escaped from the enclosure, and, possibly, had been lost or killed, is as adequate and practical as the remedy by injunction. Brugh v. Denman (1906), 38 Ind. App. 486; Hatfield v. Mahoney (1907), 39 Ind. App. 499; Ingle v. Bottoms (1903), 160 Ind. 73; Chappell v. Jasper County, etc., Gas Co. (1903), 31 Ind. App. 170; Miller v. Bowers (1902), 30 Ind. App. 116; Denny v. Denny (1887), 113 Ind. 22; Beatty v. Coble (1895), 142 Ind. 329; Sullivan v. Kohlenberg (1903), 31 Ind. App. 215.
In discussing the application of the doctrine of specific
In 4 Pomeroy, Eq. Jurisp. (3d ed.) §1404, it is said: “Where, however, the contract is in wrting, is certain in its terms, is for a valuable consideration, is fair and just in all its provisions, and is capable of being enforced without hardships to either party, it is as much a matter of course for a court of equity to decree its specific performance as for a
In 14 Current Law 1960, it is said: “Generally speaking any fair and valid contract may be enforced if property rights are involved, and if the contract is one susceptible of being enforced.”