17 Pa. Super. 631 | Pa. Super. Ct. | 1901
Opinion by
As none of the findings of facts were excepted to in the court below or are specifically assigned for error in this court, we must assume their correctness. See Equity Rules 63 to 67 inclusive. The court finds that at the time of the giving of the notice of November 11,1899, the construction of the defendant’s building was in a fair state of progress, — having been carried on without intermission from about July 1, — and that at the time of the giving of the notice of January 17, 1900, the openings complained of had been made and substantially completed. At that time the plaintiff’s injury, so far as the past or prospective action of the defendants could cause him injury, was complete. The manifest purpose of the plaintiff’s bill, which was not filed until May, 1900, was, directly or indirectly, to compel the closing up of the openings and the restoration of the wall.to its former condition. It is fair to treat it as a bill for a mandatory injunction, and if so, to attach significance to the eighth finding-of fact which is as follows : “ The openings complained of do not in any way impair the strength of the building on the plaintiff’s lot, or in any way endanger it, and do no actual harm in • any way to the plaintiff. They are five in number, and can be closed up at any time at a cost of from $65.00 to $70.00, so as to leave the wall in every respect as complete as before they were made. The defendants have expended a large sum of money in the erection of their building, on the Deckeribaugh property,
Whilst the jurisdiction of a court of equity to issue a mandatory injunction is now unquestioned, yet it is a power to be exercised with caution. In the exercise of a sound discretion the court will consider, not only the plaintiff’s legal right, but also the existence of a remedy at law and its adequacy; the plaintiff’s delay in invoking the aid of equity until after the defendant in good faith has expended a considerable sum of money; the easy compensability of his injury in money; and the comparative convenience and inconvenience which the granting or the withholding the injunction would cause the parties. This is the doctrine of many Pennsylvania cases some of which are collected in Mackintyre v. Jones, 9 Pa. Superior Ct. 543. In determining as to the adequacy of the remedy the court will take into consideration the solvency of the defendant, if that fact be established, and will inquire whether the damages must be sought in successive suits or can be obtained once for all. Doherty v. Allman, L. 14. 3 App. Cases, 709 is an instructive and pertinent case.
It may be conceded that where a lessee has proceeded secretly and surreptitiously in violation of an express or clearly implied negative covenant the inconvenience to him of being compelled to restore the status quo is not a circumstance that will be accorded as great weight as where he has proceeded openly and in a bona fide assertion of a legal right. But the allegation of secrecy in the construction of the openings was denied in the answer and is not sustained by the court. On the contrary the facts found by' the court are entirely inconsistent with the allegation. We think therefore that the court did not err in discretion in applying the foregoing equitable principles to the case and in concluding that it was not one for an injunction but was one in which the plaintiff might be properly left to his legal remedy. In View of the special circumstances set forth in the findings of facts we think this conclusion was correct whether the action of the defendants be regarded as a technical waste or as the technical violation of an implied negative covenant.
The decree is affirmed and the appeal dismissed at the costs of the plaintiff.
