39 Pa. Super. 635 | Pa. Super. Ct. | 1909
Opinion by
In order to sustain the demurrer the defendant was bound to sustain the general proposition that a court of equity has no jurisdiction to restrain the disturbance of an alleged easement until the plaintiff’s right has been established in an action at law. We say this, not because counsel expressly argue that this is the general rale, but because it would be the logical conclusion from holding that this bill was demurrable. Upon the facts admitted by the demurrer, the right of the plaintiff to have
Nor is the jurisdiction of the courts of equity to restrain or prevent the commission or continuance of acts contrary to law and prejudicial to the rights of individuals, as applied to a bill to restrain the obstruction of an easement, ousted by an answer denying the plaintiff’s legal right. The idea was thus expressed in Miller v. Lynch, 149 Pa. 460: It is not enough for the defendant to deny the plaintiff’s right; his denial must be based upon facts which show a substantial dispute.” If upon the proofs adduced at the trial it appears that no' fact essential to the establishment of the plaintiff’s legal right is wanting, or is in substantial dispute, an equity based on that right may be asserted and a decree for equitable relief made.
It appears in the present case that the plaintiff began an action at law in which the dispute as to his legal right would have been adjudicated, if the action had been prosecuted to trial and judgment. But the parties saw fit to settle the dispute, and thus end the litigation, by a written agreement, in which the plaintiff’s right to flow the surface water collected from the fall of rain and the melting of snow on his premises upon the adjoining land of the defendant, along the line fences between their respective properties, “ as the same was wont to flow for many years,” free and clear of obstructions erected or caused to be erected by the defendant, his heirs and assigns, was -unequivocally agreed to, if not distinctly recognized as a pre
But although the fact of the plaintiff’s easement was clearly established, the court was not bound to go to the full extent of decreeing specific performance of the defendant’s subsequent covenant to remedy certain conditions existing at the time of the agreement, if the plaintiff was in default in filling up the gullies then existing on his own land. In such a case, although in a court of law the covenants would be held to be independent, •yet a court of equity might well refuse to decree specific performance of the covenant last referred to: Datz v. Phillips, 137 Pa. 203. It is unnecessary, however, to go into an extended discussion of this question, because the learned judge has found that the plaintiff filled the gullies and ditches on his land, and at the date of suit brought was not in default in respect of that obligation. Having regard to the nature of his covenant, as heretofore explained, we are unable to agree with the appellant’s counsel that there was not sufficient evidence to sustain this finding. As to the effect to be given to such a finding of the trial court we refer to the cases cited in Davis v. S. W. Penna. Pipe Lines Co., 34 Pa. Superior Ct. 438 at page 442. We repeat in conclusion, what has been distinctly intimated heretofore, that the fact that the plaintiff is not presently in default will not relieve him from the continuing obligation to fill the gullies as they occur so as to prevent an increase of the flow of water for an unreasonable length of time.
The decree is-affirmed at the costs of the appellant.