Jones v. Brandon

60 Miss. 556 | Miss. | 1882

Cooper, J.,

delivered the opinion of the court.

The appellee recovered in an action of ejectment a judgment against the appellant for the possession of lot 43, in the town of Pinckneyville. A writ of habere facias possessionem was issued and placed in the hands of the sheriff of Wilkinson County for execution. The appellant offered to surrender possession of what he claimed to be lot 43, but the appellee,, contending that the northern boundary of said lot was north of the line pointed out by the appellant, demanded possession to be delivered to him up to that line. This line passes through the residence and some of the out-houses on the premises occupied by the appellant. The sheriff demanded and received from the appellee a bond of indemnity, and thereupon announced his purpose to be to execute the writ as directed by him, whereupon the appellant exhibited this bill to enjoin such execution of the writ until the true lines of lot 43 should be judicially determined, and that this might be done he prayed that an order for survey should be made by the Chancery Court, and the line fixed by its decree. An injunction was granted, but upon the coming in of the answer of the defendant, asserting the line pointed out by him to the sheriff to be the true line, a motion was made to dissolve the injunction on. bill and answer, which motion was sustained and the injunction dissolved. From the decree of dissolution this appeal is prosecuted.

The jurisdiction of courts of equity to grant relief against trespasses by injunction is but an extension of the principle under which they act in preventing the perpetration of waste, and though the power is sparingly and cautiously exercised, its use is now extended to a variety of cases in which formerly the injured party would have been left to his action at law to recover damages for the wrong.

The courts have declined to lay down any rule which might restrain them from the consideration of the particular facts of each case ; it is usual, however, for them to decline to interfere by injunction unless the injury threatened is serious and irreparable. •

In determining what is an irreparable injury, regard is had not only to its magnitude but to -its character, and it is irreparable in the sense here meant when the plaintiff could not be recompensed by a recovery of damages at law. For the destruction or injury of property, as to which there is no-pretium affectionis, whether its value be great or small, the owner may be ordinarily fully compensated by a recovery of its value, or of an amount commensurate with the injury done ; but there are rights, which though exercised over property aud dependent on it, the violation of which cannot be adequately redressed by any recovery of a mere sum of money. Of this character is that of preserving inviolate ground used as a family or church burial ground, trespasses on which will be restrained. Beaty v. Kurtz, 2 Pet. 566; Mooney v. Cooledge, 30 Ark. 640.

Another class of cases to which such relief will be extended, because of the uncertainty of the quantum of the injury which would be inflicted, is that of rights secured by patent and copyrights. High on Inj., sects. 934, 988.

The decisions of the English courts upon this question were reviewed by Kindersley, V. C., in the case of Lounds v. Bettle, 33 L. J. Ch. 451. The cases were classified by him first in reference to the possession of the party seeking the relief, and he states the rule to be that the remedy is afforded more liberally to a complainant in possession to protect that possession, than to one out of possession to protect the property until possession can be recovered by law. A subordinate classification is also made by him of the cases in which the complainant is in possession, based upon the character of the party by whom the injury is threatened, and a more liberal rule, it is said, applies against one claiming under color of right than against a mere trespasser. “ Where, therefore, the plaintiff is in ¡jossession, and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law, though when the acts tend to a destruction of the estate the court will grant it. But when the party in possession seeks to restrain one who claims by adverse title, then the tendencj'' will be to grant the injunction, at least when the acts done either did dr might tend to the destruction of the estate.”

The injury threatened to complainant (appellant) is not alone such as would usually be inflicted by the deprivation of the possession of a certain quantity of land for which compensation might be fixed and recovered, but it includes also the invasion of his domestic privacy, by dividing his residence and out-buildings and placing them in the possession of the appellee.

Such an injury cannot be recompensed by any recovery of a mere sum of money. The mere rental value of the property so taken, the deprivation of its use, would be but insignificant elements for consideration, and yet, if the demand and intrusion of the appellee should appear to have been Avrongfully but honestly made, they would be the standard by which appellant’s injury would be measured in an action at law. Under these circumstances we think the injury threatened is irreparable in that sense which warrants the interposition of equitable relief.

It is said, however, that complainant had the opportunity of defending his possession in the action at law which resulted in ajudgmentagaiust him, and that having failed to avail himself of it, he cannot now invoke the aid of chancery. But the record does not show, it is not averred in the answer of the appellee, that the question of the location of the boundary lines of lot 43 was litigated in that action. If such is the fact, it should have been disclosed ; and, in the absence of any ■evidence to establish it, we must persume that the only issue presented or determined in the suit at law was that of title to the lot, as to which question no controversy is now made.

The appellee also invokes the rule that an injunction will be dissolved when the equities of the bill are distinctly denied by a sworn answer. This case, we think, falls within that exception to this rule, which is, that when a serious or irreparable injury would be done to the complainant by a dissolution of the injunction, while that to the defendant by its retention would be slight and easily recompensed, the injunction should be retained until final hearing', even though the answer denies the equity of the bill.

The decree dissolving the injunction is reversed, the injunction is reinstated and the cause remanded to be proceeded with in the court below.