Pennsylvania Railroad v. Kelley

77 N.J. Eq. 129 | New York Court of Chancery | 1910

Leaming, V. C.

The accepted rule in this state touching mandatory injunctions, as stated by our court of errors and appeals in Bailey v. Schnitzius, 45 N. J. Eq. (18 Stew.) 178, 184, is that a mandatory injunction “is rarely granted before final hearing or before the parties have had full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be. It is always granted cautiously, and is strictly confined to cases where the remedy at law is plainly inadequate. A preliminary mandatory injunction will be ordered only in cases of extreme necessity.” Substantially the same rule touching preliminary mandatory injunctions is stated by Chancellor Runyon in Whitecar v. Michenor, 37 N. J. Eq. (10 Stew.) 6, 14, and quoted, with approval, in Hodge v. Giese, 43 N. J. Eq. (16 Stew.) 342, 351, as follows: “The court is always very reluctant to grant a mandatory injunction on an interlocutory application, but where extreme or very serious damage would ensue from withholding it, as in cases of interference with easements, or other eases demanding immediate relief, it will be granted.”

In the present case there is not in my mind the slightest doubt touching the truth of the averments of the bill to the effect that the safety of the traveling public is seriously endangered by the maintenance of the building in its present condition. The affidavits filed in behalf of defendant, when considered as affidavits intended to meet the averments of the bill, may be said to practically admit the danger. One of the affidavits, without denying the existence of a present danger, simply says that the building can be made perfectly safe by repairs. The other affidavit, without denying the existence of the detailed structural weakness of the building, as pointed out by the bill and its accompanying affidavits, says: “That while the building might collapse if not repaired, yet the danger of collapse is not imminent,” and then proceeds to point out that the present weak condition of the building is due to the shaking of the building by the traffic over the railway, and that this traffic is constantly increasing. It may therefore be said that there is no substantial denial of the truth of any of the averments of the bill except the single averment to the effect that the building cannot be made safe by repairs.

It is a matter of little concern at this time at whose ultimate expense this threatening danger shall be removed. Complainant company is compelled to operate its road and to supply to the public safe means of transportation. The maintenance of this building by defendant Kelley in its present condition undoubtedly renders'it impossible for the railroad to be operated with safety to the public. The precaution of maintaining watchmen at the point of danger is wholly inadequate for the collapse of the building is most likely to occur at the moment a train is in the act of passing, and thereby causing the very vibrations which are said to have created the structural weakness of the building. The primary consideration at this time is the safety of the public, and that safety must be secured at once. That safety can be secured at once in but one way — the immediate removal of the source of danger. Whether the danger is removed by adequate repairs to the building or by the building being wholly torn down is at this time immaterial, but the danger must be removed at once. The conditions presented are clearly those of extreme necessity. As owner of the dangerous building, the primary duty of the removal of the danger falls on defendant Kelley. His refusal to remove the danger calls for the exercise by this court of its undoubted power to compel him to do so. It is well recognized that a building which, by reason of its inherent weakness or its dilapidated condition, is liable to fall into a highway and injure passers-by or persons lawfully thereon, is a public nuisance. Joyce Nui. § 238. Such a building is also a private nuisance where it is liable to fall and injure adjoining property. Timlin v. Standard Oil Go., 54 Hun (N. Y.) Complainant is equally entitled to relief against the maintenance of the structure here in question whether it be viewed as a private nuisance or as a public nuisance from which complainant suffers private, direct and special injury.

As the material facts are not in substantial dispute and the operation of complainant’s railway cannot be continued with safety to the public or with safety to complainant’s property without the -immediate removal of the danger which is threatened by the continued maintenance of defendant’s building in its present condition, I will advise an order for the issuance of a mandatory injunction directing defendant immediately to remove the building or immediately to repair the building in such manner that all danger of its falling on the tracks of complainant’s railway may be removed. Should defendant assume to remove the danger by repairing the building, the adequacy of the repairs so made may be appropriately inquired into' at any time.

Under the circumstances presented, I think it appropriate to require complainant, before the writ issues, to execute a bond to defendants, in an amount to be ascertained at the time the order for the writ is signed, conditioned to pay to defendants such damages as may be sustained by them by reason of the issuance of the writ, in the event of its being ascertained at final hearing, or on appeal in the event of an appeal, that complainant was not entitled to the relief at this time awarded.