40 Mich. 46 | Mich. | 1879
Complainants and defendant are the owners in severalty of certain adjoining property in the village of Kalamazoo, upon which buildings have been erected, and in the rear of which there is, and has been since 1848, a private alley twenty feet wide.
More than twenty years previous to the time the bill was filed in this cause, a wooden building was erected between the rear of defendant’s building and this private way, which it is conceded encroached upon the alley some six inches.
In 1878 defendant desired to make some improvements upon this wooden building. He tore off the siding, and commenced the erection of a stone foundation thereunder, with the design of veneering the building with brick and building a stairway in the alley to the second story thereof. Complainants objected to the construction of the stairway which would have extended into the alley some four feet, and also objected to any encroachment
It might admit of some question whether the decree was not broader than really intended. It would seem to require the removal of not alone the three-inch projection, but the entire wall, a portion of which had stood and encroached upon the alley for over twenty years, and had ripened into a right by adverse use. Under the recitals in the decree, perhaps no serious question would arise as to the extent thereof, but under our view of the case, this becomes a matter of no consequence. This building it appears stood within the fire limits, but whether the defendant was thereby prohibited from repairing it in any other way than by brick or stone does not appear.
Admitting that defendant is encroaching some three inches upon this private way, yet it would seem to have been commenced by him in entire good faith, in repairing a building which had long been standing. It is not claimed that such repairs were not necessary and in all other respects right, proper, and indeed beneficial to the property of defendant, and also the adjoining property
Their claim is that they are of right entitled to the full width of the alley, and that it cannot be taken from them by piece-meal this way.
It may admit of some doubt whether a party is ever entitled as matter of right to a remedy by injunction to restrain the commission of a threatened injury. If the injury is likely to be irreparable the court will interfere: so it will for other reasons, but it will examine into all the circumstances of the case, and if it is apparent that the relief sought is disproportioned to the nature and extent of the injury sustained, or likely to be, the court will not interfere but will leave the parties to seek some other remedy. Fox v. Holcomb, 32 Mich., 495; Briggs v. Withey, 24 Mich., 136; Norris v. Hill, 1 Mich., 210: White v. Forbes, Walk. Ch., 114.
Within this rule complainants clearly are not entitled to the relief sought as the case now stands, and they need not anticipate farther trouble in the same direction.
The decree must be reversed and the bill dismissed with costs.