94 Ind. 235 | Ind. | 1884
The complaint of the appellant alleges that a petition was presented to the board of commissioners of Monroe county praying for a change in a highway therein described; that such proceedings were had as resulted in an order directing the change to be made as prayed; that the change proposed will alter the direction of the highway
An injunction will not lie to restrain the execution of an order of the board of commissioners unless the order is void, for the reason that if the proceedings are merely irregular or erroneous, the remedy is by appeal, and, as has been many times decided, where there is such a remedy injunction will not lie. The first question, then, is whether the complaint shows the order to be void, for, if it does not, it is clearly bad. We think it does do this. It was decided in White v. Conover, 5 Blackf. 462, that an order which does not define the width of the proposed highway is absolutely void. This case has been many times followed and approved. Carlton v. State, 8 Blackf. 208; Barnard v. Haworth, 9 Ind. 103; DeLong v. Schimmel, 58 Ind. 64.
A mere naked trespass can not be enjoined, for the law affords an adequate remedy by an action for damages.
In our opinion the present complaint charges more than an
The facts stated in the complaint show the threatened wrongful act to be more than a temporary trespass, for they show it to be an act continuous in its nature, permanently affecting the freehold, and sustained by color of authority from a judicial tribunal. The remarks of Judge Story are justly applicable: “ For,” said this learned judge, “ if the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts
The case of Smith v. Weldon, 73 Ind. 454, is readily distinguished from the present, for there the' complaint showed that the damages could be ascertained, and that they amounted to only $100. The opinion in Lewis v. Rough, 26 Ind. 398, treats the complaint as charging a simple trespass, and proceeding on that ground holds that the complaint did not warrant an injunction. On the theory assumed, the conclusion
The provisions of the code-are often lost sight of, and the expressions of the old cases adopted in place of those of the-statute. It is not necessary under the provisions of our code to aver or prove irreparable injury. -It is sufficient, in the language of the statute, that the plaintiff is entitled to the-relief demanded, and that the relief, or any part thereof consists in restraining the commission or continuance of some-act, the commission or continuance of which during the litigation would produce great injury to the plaintiff. R. S. 1881,. sec. 1148. In speaking of this provision the court said: “ The expression ‘great injury’ here used, in its ordinary import, certainly does not imply an irreparable injury.” Clark v. Jeffersonville, etc., R. R. Co., 44 Ind. 248.
The court below erred in sustaining the demurrer to the complaint.
Judgment reversed.