66 So. 50 | Ala. | 1914
The bill of complaint is without equity in so far as it is predicated upon the theory of a license in favor of complainant to use the lands of respondent for a water supply and for the maintenance
Incidental benefits that might accrue to the licensee as a salaried officer or stockholder of the licensee company cannot be regarded as a valuable consideration in law or equity which would support the license. Nor does an equitable estoppel arise merely by reason of the land owner’s consent to, or acquiescence in the enjoyment of a license or easement, though the licensee has made expenditures in reliance thereon.—Turner v. City of Mobile, 135 Ala. 73, 33 South. 132; Pioneer M. & M. Co. v. Shamblin, 140 Ala. 486, 37 South. 391; Lawrence v. Springer, 49 N. J. Eq. 289. 24 Atl. 933, 31 Am. St. Rep. 702, note, 712.
Moreover, the right here contended for by complainant is in fact a permanent easement, rather than a personal license, and is, under the statute of frauds, of no effect unless granted by a writing, or acquired by-prescription.—Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202; Hicks v. Swift Creek Mill Co., 133 Ala. 411, 419, 31 South. 947, 57 L. R. A. 720, 91 Am. St. Rep. 38 (citing and discussing many authorities).
■ However, complainant’s main reliance for the equity of its bill is upon the theory of a constructive trust in the Ide lands, or in -the use of the water rights thereto appurtenant, arising out of Ide’s peculiar relations to complainant company and its stockholders and his expressed or implied duty to acquire this water tract
The principle relied on is: “Whenever one person is placed in such relation to another by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.”—Note to Keech v. Sandford, 1 Lead. Cas. in Eq. 53.
This principle, as thus stated, has been fully approved by this court.—Scottish, etc., Co. v. Dangaix, 103 Ala. 388, 15 South. 956; Waller v. Jones, 107 Ala. 331, 18 South. 277. The principle is, of course, peculiarly applicable to all agencies of trust and confidence, whether they relate to personal, partnership, or corporation affairs. Our analysis of the bill leads to the conclusion that in this aspect it is not wanting in equity.-
When the bill contains equity it is not a matter of absolute right in the respondent to- have the injunction dissolved on the sworn denials of the answer: “Where, if the defendant’s allegations are true, the injunction will do him no harm, and if the plaintiff’s allegations are true, a dissolution will involve him in irreparable injury, the injunction will not be dissolved.”—Scholze v. Steiner, 100 Ala. 148, 14 South. 552. See, also, Francis v. Gilbreath, etc., Co., 180 Ala. 338, 60 South. 919, and cases cited.
Ttecent statutes, while not impairing the sound judicial discretion of the chancellor in the matter of granting or dissolving a temporary injunction, have
In this connection the rule is thus stated in 5 Pom. Eq. Jur., § 264: “It is not necessary that the court be satisfied that the plaintiff will certainly prevail on the final hearing; ‘a profitable right, and a probable danger that such right will be defeated, without special interposition of the court/ is all that need be shown. When there is • grave doubt, however, as to the complainant’s right, preliminary relief will generally be denied.”
In spite of the sworn allegation of the bill, which are to some’ extent conclusions, and are for the most part made only on information and belief, we concur in the conclusion of the chancellor that there are practically no facts shown by the evidence, which are persuasive of the probable existence of complainant’s asserted equities. The doubtful deductions upon which these equities must be grounded, though they are stated
■ Our substantial concurrence with the chancellor’s findings upon the facts leaves no room for the exercise of the discretion usually indulged upon a consideration of the relative injury which may probably result to the opposing litigants from the award or denial of injunctive relief. We feel bound, therefore, to affirm the action of the chancellor in dissolving the' restraining order and denying the temporary writ of injunction.
It is urged in behalf of complainant that, even though its interest in the water tract was of no higher grade than a revocable license, yet, being on the land, and having spent several thousand dollars in valuable improvements thereon, it was entitled to reasonable notice of revocation. But the reasonable notice required by law in such cases is only for the purpose of giving the licensee an opportunity for the removal of such personal property as he inay be using in connection with the enjoyment of his license. For other purposes no notice is necessary.—25 yc. 652, and cases cited; Riddle v. Brown v. 20 Ala. 412, 419, 56 Am. Dec. 202. It does not appear that complainant’s rights in this regard have been in any way denied.
Affirmed.
