Rankin v. Charless

19 Mo. 490 | Mo. | 1854

Scott, Judge,

delivered the opinion of the court.

1. There is no evidence preserved in the record in support of the defence set up by the defendant. Consequently, no question can arise as to the right to continue the use of the •wall of the plaintiff as a support for the joists of his building. The verdict establishes the fact, that the defendant has unlawfully made use of the building of the plaintiff, as a support to the joists of his house, and the only question that arises is, what remedy or judgment is warranted in law by the verdict of the jury? The present practice act having blended the jurisdiction of courts of law and equity, it would seem that the plaintiff is entitled, in this proceeding, to all the relief that would formerly have been afforded both by a court of law and equity.

2. According to the definition of a nuisance, which is said to be a wrongful act or neglect of one man, in the use or management of his land, which occasions damage to the possession or easement of his neighbor, or to a public easement, it may be questioned whether the injury complained of is a nuisance or not. Gibbon, 360. A purpresture is a species of nuisance, but that term is only applied to an encroachment on land belonging to the public. Coke, 177. But, although the act complained of may not be a technical nuisance, to be redressed by the remedies appropriated by law for that species of wrong, yet it is clearly an injury, .entitling the party affected by it to an action for its redress.

The record in this case only presents the petition of the plaintiff, the answer of the defendant, and the verdict and judgi ment. The petition substantially alleges that the defendant, in building his house, used the wall of the plaintiff’s house, (who was building simultaneously,) for a support to the joists of his building. The defence was, a license to use the wall. The verdict of the jury awarded damages to the plaintiff for the act complained of.

It seems that, in the opinion of the .court below, an erroneous judgment was entered on this verdict, and so much of it as decreed that the joists be removed from the wall, that the holes made by the insertion o£ the joists, be filled with brick and mortar, as strongly as it may be done, and that the plaintiff have execution against the defendant, in conformity to this judgment and decree, was stricken out, and it was thus left a judgment for the damages assessed.

Even if the injury complained of was a nuisance, yet it is well known that, in an action on the case, for such a wrong, no judgment for the abatement of it is given. That judgment was only proper in the old writ of assize of nuisance, and in a quod permittat prosternere. 3 Black. 219. But these ancient remedies have fallen into disuse, i£ they have not been abolished, and the action on the case, and the writ of injunction are now the usual remedies for a nuisance. But courts of equity do not, as a matter of course, interfere in all cases of this kind. That interposition can only bo demanded to restrain irreparable mischief, or to suppress oppressive or interminable litigation, or to prevent a multiplicity of suits.

No injunction will be granted unless the act done or contemplated is, or will clearly be a nuisance. If a party sees a nuisance in progress, and does not interfere to prevent it, he will forfeit his right to assistance from a court of equity. Jones v. Royal Canal Co., 2 Molloy, 319. Williams v. Earl of Jersey, 1 Craig & Phillips, 91. Gibbon on Nuisances, 403.

As the record is barren of all the circumstances attending this transaction, no reason is perceived why, if the extraordinary powers of a court of chancery are exerted in this case,’ they may not be in every complaint of a nuisance. It is allowable for a party to take the redress of wrongs of this character into his own hands. This was a case eminently proper for the exercise of such a right. Had the injury been redressed by the party at the moment it was done, the consequences would have been by no means so serious as they must be at this time, by granting the relief prayed. The injury has been done. It cannot now be prevented. It may be redressed. Whether it would be more equitable to let it remain, and leave the plaintiff to his remedy at law, we cannot say, as the facts necessary to a determination of that question are not before us. To tear down the house of the defendant now, might look more like revenge than the legal reparation of an injury. It is no part of the business of tribunals of justice to minister to the angry passions of men. If the defendant will wantonly persist in his encroachments on the rights of the plaintiff, it is in the power of the courts of law to award such damages as will arouse him to a sense of his continued injustice.

The other judges concurring,

the judgment is affirmed.