Deegan v. Neville, 127 Ala. 471

Deegan v. Neville

127 Ala. 471 | Ala. | 1900

TYSON, J.

-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 *478he had. no exclusive right of enjoyment, if indeed it can he said he had any right to use it at all. But we may concede for the purposes of this cáse, that the yard was embraced in the lease and that complainant was entitled to its exclusive possession, and also of the water closet, and yet,-it does not follow, that he is entitled to injunctive relief against trespassers.

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.”

*479Mr. Freeman, in Ms note to the case of Jerome v. Ross, 11 Am. Dec. 500, after reviewing the cases involving, the principles underlying the issuance of writs cf injunction against trespassers, the basis of the jurisdiction and showing the injury must be irreparable, says: “This definition is perhaps as accurate as any that can. be framed.” Continuing he says: “It is thus seen that, the ultimate ground upon which equitable intervention, in cases of trespass rest is the inadequacy of legal remedies for the injury, which is the broad foundation of all. remedial jurisdiction in equity. * * An injury resulting from trespass, may be incapable of compensation in damages-from a vaxdety of reasons: 1. It may be destructive of the very -substance of the estate; 2. It may not be capable of estimation in terms of money;. 3. It may be so continuous and -permanent that there is no instant of time when it can be said to be complete-so that its extent may be computed; 4. It may be vexatiously persisted in, in spite of repeated verdicts at law;, 5. It may be committed by one who is wholly irresponsible, so that a verdict against him for damages would be entirely valueless; 6. It may be committ-eed against one-who is legally incapacitated from a beneficial use of the-remedy at law.”

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 *480condition of tlie wall, it is not shown that it would.most likely fall before the termination of the complainant’s •occupancy of the house, thereby depriving him of its use. So far as we are advised, his business was not in any manner interfered with and certainly the facts averred were not destructive of or ruinous to the use for which the premises were rented. And unless this be shown, the injury is of such a nature as is susceptible of adequate pecuniary compensation in damages. — Kellar v. Bullington, 101 Ala. 271.

■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. *481As tliis appears to be 'the one npon which the complainant relied for the exercise of the jurisdiction of the court, we quote it. it reads as follows: “Your orator further shows and submits unto your honor that bis remedy at law for said continuous injuries and trespassing is entirely inadequate for the reason that such remedy at law would nécgssitate a multiplicity of suits,” etc. Waiving all objections to this averment on account of its failure to state the facts, from which the conclusion may be drawn that complainant’s remedy at law is inadequate for the reason that such remedy at law would necessitate a multiplicity of suits, it is not a ground for equitable interference in this case. It is not doubted that 'the prevention of litigation under some circumstances is a subject of equity jurisdiction. And so too, the necessity of preventing a multiplicity of suits affords an exception to the general doctrine, that equity will not interpose by the extraordinary remedy by injunction when adequate relief may be had in the usual course of procedure at law. But in order to bring the .case within the exception and to warrant the interference in such cases, it must be shown that there are different persons assailing the same right “and each standing on his own pretensions.” This doctrine has no application to persons who are guilty of a repetition of the same trespasses, simply because there may be several of them asserting the right to do so ’under the authority of and by the direction of one of them who alone claims the right to the possession of the lands. Hatcher v. Hampton, supra; Moses v. Mayor, etc., 52 Ala. 210; 1 High on Injunctions, § 700.

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,

*482The decree of the chancellor refusing to dissolve the injunction must be reversed, and a decree will be here rendered dissolving it.

Reversed and rendered.