127 Ala. 471 | Ala. | 1900
-This bill was filed to enjoin tbe continuance of certain alleged trespasses. It appears that the complainant has a mere chattel interest in the lands. His possession of the premises was for a term, which expired on the 1st day of November, 1900, and the alleged trespasses appear to have been committed -during the month of September preceding, by his landlord and his employees, the other defendants. Only thirty-seven days of his term remained between the date ■of the filing of the bill and the expiration of his possessory interest under his lease. The bill fails to disclose the nature and character of the use or enjoyment of the premises, but it appears from the lease, which is made an exhibit to the amended answer of respondent Deegan, that the house on the premises was rented by complainant to be occupied as a saloon or bar room “with yard privileges at west end (of house) to a certain board fence.” We may presume that the complainant was occupying the house in conformity to the terms of his lease; that is he was occupying it as a bar room and was conducting a liquor business in it, though it is not •so averred in the bill. . The trespasses most grievously complained of were those alleged to have been committed upon this yard, which from their nature and character made it dangerous to the person to go into it or along or across it. The purposes for which this yard was used by the complainant is not shown by the bill.Indeed it is silent on this point, failing to show any use whatever of it by- complainant. And, if resort be had to the affidavits filed by complainant in support of the truth of the allegations of the bill, we find that the' only use he made-of it was-to traverse it in going to and from a water closet which was located in the. extreme ■northwest corner of this yard, which closet did not belong to him under the terms of the lease, and to which
it is a universal rule that an injunction will not be granted to restrain a trespasser merely because he is a trespasser. The foundation for the exercise of the jurisdiction of a court of equity in the restraining of threat- , ened trespasses rests upon the inadequacy of legal remedies to compensate for probable injuries which may result if the commission of the trespass is not restrained. This principle is stated by Mr. High in his work on Injunctions (1st vol.), § 697, in this language: “The jurisdiction may now, however, be regarded as well established, although it is still sparingly exercised, being confined to cases where from the peculiar nature of the property affected by the trespass or from its frequent repetition the injury sustained can not be remedied by an action for damages, and where it may, therefore, be properly termed irreparable. The foundation of the jurisdiction rests in the probability of irreparable injury, the inadequacy of pecuniary compensation, and the prevention of a multiplicity of suits, and where facts are not shown to bring the case within these conditions, the relief will be refused. Equity will not, therefore, enjoin a mere trespass to realty as such, in the absence of any element of irreparable injury.” What is an irreparable injury, is often difficult to determine, but it must, in all cases, be determined by the particular facts shown in the case under consideration. It is said by Pearson, J., in Gause v. Perkins, 3 Jones Eq. (N. C.), 179: “The injury must be of a peculiar nature, so that compensation in money cannot atone for it; where, from its nature, it may be thus atoned for, if in the particular case the party be insolvent, and on that account unable to atone for it, it will be considered irreparable.”
It is manifest from the averments of the bill, that only two of the reasons assigned by Mr. Freeman, have been attempted-to be invoked in this case. The first is, the destruction of the right of full enjoyment by the complainant of the premises. This consists in making it' dangerous to go to and from the Avater closet- on account of the dropping of brick from above, the breaking of this: el-oset so as to cause the water flowing from it to overflow the yard so as to render the same a menace to health on account of its unsanitary condition, and in rendering the rear wall of the house unsafe by nailing braces and s-mports upon it. The damage done to the closet, and the menace to health caused by the overflow of the yard by the water flowing through it, being so easily remedied, they are hardly worthy of notice in considering the question of destruction'' of the enjoyment of the premises. And this may be. said of the entire deprivation of the complainant to use the closet at all. As to the unsafe
■The second reason attempted to be invoked is that the injuries ’and trespasses are of a recurrent and continuous nature. No facts are alleged supporting this averment. It is a bald assertion of the pleader and seems to he predicated upon repeated acts of trespass alleged to have been committed by the respondents. To make the injury or trespass a continuing one, it must be of such a character as that its recurrence is not dependent upon any act to be done by any person. Thus, where a person erects a dam by which another’s land would be inundated and his timber periodically destroyed, though the act done was a single one, that of erecting the dam, the .trespass would not be single. Every rise of the water occasioned by heavy rains would produce another injury, so that from the very nature of the injuries there would be constantly recurring grievances and the jury would be unable to fix upon a time when the wrong may be said to be complete. Adverting to the 'allegation of repeated trespasses, it is only necessary to say, adopting the language of Justice Lumpkin, in Hatcher v. Hampton, 7 Ga. 49: “It has never been supposed, that because one person chooses daily to pull down the fence of another, and turn his stock in his fields, that this would authorize the courts of chancery to restrain the intruder by injunction.”' — Ellsworth v. Hale, 33 Ark. 633. Applying that principle to this case, we cannot hold that the acts of trespass complained of, though oft repeated, would authorize the writ of injunction in this -case.
■ The only other point now to be considered, is the one ■presented by the last paragraph of the amended bill.
This case in its last analysis may be stated to be, adopting the most favorable view of it as presented by the complainant, a breach by the defendant, landlord, of his covenant for quiet enjoyment arising out of his contract of lease; an unauthorized re-entry bv him upon a portion of the leased premises and the taking of the possession’of the same for which he is liable in an action at law upon his implied covenant of quiet enjoyment— a remedy, if pursued, full and adequate to compensate complainant in damages for all injuries he may have suffered by reason of the breach,
Reversed and rendered.