209 A.D. 895 | N.Y. App. Div. | 1924
Order affirmed, with ten dollars costs and disbursements. It is not denied that the defendant unlawfully and without permission of plaintiff entered upon plaintiff’s land and committed a continuing trespass thereon. The answer of the defendant seems to be that as the land is rough and unimproved, plaintiff really suffers no damage, and that he can be compensated in an action at law. This contention is entirely beside the legal question” involved here, which is the right of plaintiff to use and enjoy his land without the unlawful trespass of the defendant, which the record shows has been committed without any regard to plaintiff’s rights. Kelly, P. J., Rich, Jaycox and Manning, JJ., concur. Kapper, J.: I dissent, for the following reasons: A court of equity ought not to aid plaintiff in the circumstances here shown. Defendant’s temporary user of plaintiff’s land appears to have covered comparatively a long period of time, and was certainly without protest from the plaintiff until defendant reached the final stage of the work, with but five or six more days required for completion. Plaintiff’s land is concededly not in use by him, nor does he immediately require it. Defendant’s trespass is technical, and occasions no damage whatever to plaintiff. Neither irreparable nor any other kind of injury is shown by plaintiff, and the latter has an adequate remedy at law. I cannot refrain from the opinion that plaintiff’s attitude is one of spite pure and simple. I think the order should be reversed and the motion denied.
