| Ill. | Oct 11, 1895
delivered the opinion of the court:
Two questions are presented on this record, the determination of which is conclusive of this case: First, do the facts, as shown in the record and found in the decree, give jurisdiction of the subject matter of this bill to a court of chancery and sanction a decree awarding a perpetual injunction; and second, if jurisdiction is conceded, do the averments of the bill authorize the decree as entered. Both questions must be determined adversely to appellee.
The acts sought to be enjoined are threatened trespasses to real estate alleged to be owned by appellee, and the bill charges trespasses heretofore committed, which are found by the court. Courts of equity will interfere to restrain trespass, whether committed under the forms of law or otherwise, in but exceptional cases. These exceptions are included in two classes: First, to prevent irreparable injury; and second, to avoid a multiplicity of suits. Where application is made to a court of chancery under the first class, the facts and circumstances must be alleged from which it may be seen that irreparable mischief will be the result of-the act complained of, and that the law can afford no adequate relief. A mere allegation of such facts is not sufficient to warrant a decree for a perpetual injunction in such case, unless admitted by the pleadings. The question of the existence of an adequate remedy at law, to defeat the jurisdiction of a court of chancery, may be raised by a demurrer to a bill for failing to make the necessary averment, or it may be specially set up and relied upon in the answer. Where the jurisdiction is challenged and an issue made by the answer to a bill with sufficient averments, on a hearing the evidence must sustain the averments of the bill or jurisdiction is lost. The averments of the bill in this case as to irreparable injury are sufficiently specific to give jurisdiction, and trespasses committed and threatened, and insolvency of defendants, are alleged. The answer specifically denies the defendants are insolvent and denies the jurisdiction of a court of equity, averring the complainant had a complete remedy at law. There is no finding in the decree as to the insolvency of the defendants, and the evidence shows the principal defendant, Henry Harms, is worth over $400,000, his property being chiefly in Cook county. The insolvency of the defendants is the specific fact, and only fact, averred that would give a court of equity jurisdiction to restrain trespasses because of irreparable injury. Under the evidence in this record, on the issues as made, it is apparent the complainant had a complete remedy at law, and would sustain no damage that could not be satisfied by the judgment of a court of law, as his injuries from trespasses could be compensated in damages. Owens v. Crossett, 105 Ill. 354" date_filed="1883-01-31" court="Ill." case_name="Owens v. Crossett">105 Ill. 354; Thornton v. Roll, 118 id. 350; Poyer v. Village of DesPlaines, 123 id. 111; Chicago Public Stock Exchange v. McClaughry, 148 id. 372; Comrs. of Highways v. Green, 156 id. 504.
The entire scope of the bill was for. an injunction to restrain threatened trespasses. Such being its extent and purpose, the decree as entered contained, as against the defendants, a finding that the title in fee simple absolute to said premises was in the complainant at the time of filing the bill of complaint. By the bill complainant alleged he was the owner and in possession of the premises, and defendants threatened to commit trespasses thereon. By the answer defendants denied that complainant was owner of the premises, but averred the title and possession were in the defendants, and denied the threatened trespasses. The decree was broader than the averments of the bill sanctioned. No relief was asked as against a cloud on title, to give jurisdiction. The complainant must stand or fall by the case made by his bill, and the decree must conform to the allegations and prayer. Gage v. Curtis, 122 Ill. 520" date_filed="1887-11-11" court="Ill." case_name="Gage v. Curtis">122 Ill. 520.
There is no averment of the bill which necessitates a discussion of the question of a resort to a court of chancery, by injunction, to prevent a multiplicity of suits.
We do not deem it necessary to enter into a discussion of the question of title and possession, as for the errors indicated the decree must be reversed and the cause remanded to the Superior Court of Cook county, with directions to dismiss the bill.
Versed and remanded.