82 Pa. 373 | Pa. | 1877
delivered the opinion of the court, January 2d 1877.
This bill charged that appellant threatened to tear down a fence, standing on the line between adjacent lots of the parties, and to remove it eighteen inches on to another line, claimed by the appellant to be the true boundary line. It prayed for a special injunction then, and upon final hearing, that the defendant be perpetually enjoined from tearing down or interfering with the fence. The special injunction was granted. The answer denied making the threats, but alleged the fence to be about two feet over on the land of the appellant’s wife. It admitted that he had notified the complainant to remove it to the true line, and on his failing so to do, that he, the appellant, would remove it.
The case was referred to a master, who also acted as examiner. He found it was clearly shown, that the fence claimed by the plaintiff below to be the boundary line between them, was two feet upon the defendant’s land or his wife’s land. The master, therefore, was of the opinion, “ that a perpetual injunction ought not to issue to restrain the defendant from removing it, and if he sees proper, placing a fence on the true centre line,” and that the preliminary injunction ought to be dissolved.
On exceptions filed, the court below set aside the master’s report and continued the injunction until the final decision in the action of ejectment, brought by appellant and wife, after bill filed, for the land in dispute. From the decree granting the special injunction, and continuing the same, this appeal was taken. Several errors were assigned, but the argument was substantially confined to the third assignment.
The correctness of the decree depends on whether the right of the appellee was established with sufficient certainty, and the injury threatened was irreparable.
1. A preliminary injunction is emphatically the strong arm of the court, and is never awarded except in a clear case of right, and where no doubt exists as to the claim of the plaintiff to the remedy he invokes: Brightly’s Eq., § 303; Biddle v. Ash, 2 Ash. 211. Where the proof as to the right is so equally balanced as to leave it in doubt, the injunction should be refused until the rights of the parties are ascertained and settled: Mammoth Vein Coal Co.’s Appeal, 4 P. F. Smith 183; Brown’s Appeal, 12 Id. 17. Unless it be a strong and mischievous case of joressing necessity, or the right has been previously established at law, a party cannot ask a
• 2. A court of equity may interpose, in a case of trespass, to prevent irreparable mischief, and to prevent multiplicity of suits; but if the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of a court of equity: Brightly’s Eq., § 295. As a general rule, mischief which is susceptible of compensation in damages is not irreparable: Brown’s Appeal, supra. No decree should be made to be followed by injunction, unless irreparable injury be clearly established: Clark’s Appeal, 12 P. F. Smith 447. Hence, when the owner of a hotel filed a bill to restrain the removal from it of a cooking-range set in brick work, a hot-water reservoir connected by cast-iron pipes running through the brick-work to the range, a carving-table nailed to the floor, and other fixtures of a permanent character for.a hotel, it was held the bill would not lie, as they were articles of convenience only, and not of necessity, and there was an adequate remedy at law, therefore a court of equity had no jurisdiction: Ibid. It is there farther said it was never intended to take away the common-law right of trial by jury, where a wrong done by a party could be redressed by it. In support of this view the learned chief justice cited numerous cases. So in Jerome v. Ross, 7 Johns. Ch. 330, in an opinion by Chancellor Kent, it was held that, for a naked trespass for which compensation could he made in money, the party must resort to his action of trespass ; that an injunction will not be granted, unless there was an intention to actually destroy the subject in dispute, and not merely to injure it.
Jarden v. Phila., Wilm. & Balt. Railroad Co., 3 Whart. 502, was 'urged as sustaining the bill. That, however, was the. case of a bill to enjoin a corporation from taking permanent possession of land before a performance of the conditions which preceded its right to possession. The street was to be opened, and the damages were to be paid. Neither had been done. The' case is not analogous to the one under consideration.
Looking at the facts found by the master, the evidence not only fails to establish the right of the appellee in the fence or in the ground on which it stands, but it shows the right to both to be in the appellant. Furthermore, if the latter should remove the fence without right, the trespass would be temporary only, and could be compensated in damages. The damages recovered would replace it. While the fence was probably convenient for the complainant, it was not as necessary for the enjoyment of his lot as the fixtures
Decree reversed, and bill dismissed at the costs of the appellee, without prejudice.
