Washburn v. Miller

117 Mass. 376 | Mass. | 1875

Devens, J.

The plaintiff seeks to maintain the bill upon the ground of repeated trespasses by the defendant upon his private way by passing and repassing thereon, and by doing thereon various other acts for the purpose of rendering the same more convenient for his own use.

It is not doubted that an injunction could properly be issued to restrain one from the commission of an alleged trespass where the damage liable to be occasioned thereby would be irreparable; but in such case it would be for the purpose only of enabling the party, whose rights were alleged to be invaded, to test them in a court of law. So where acts of the nature alleged in the bill had been held, in previous suits brought by the plaintiff, to be trespasses, and his title thus fully shown, and it further appeared that damages would not be an adequate compensation for them, it might be proper that a party continuing to commit them should be permanently restrained by injunction. No such case is here presented; it is not averred that irreparable damage is liable to be done, nor are any facts stated which indicate that damages would not adequately compensate the plaintiff. No suit at law has apparently been brought by the plaintiff to establish his right to the way in question as against the defendant; but it does appear that the defendant has brought a suit against the plaintiff for interfering with him in the use of it by certain alterations made by him, and against the prosecution of this suit the plaintiff prays for an injunction. By the bill, therefore, he simply endeavors to remove into this court the determination of the rights of the parties in the use of the way. This should not be done >' it is a matter appropriate to the jurisdiction of a court of common law, and if the rights of the plaintiff have been invaded, its powers are ample to afford him an adequate remedy.

Nor can the bill be maintained because it will prevent a multiplicity of suits. All the trespasses as set forth may be made the subject of a single action in which the plaintiff may recover such damages as he shall show he has sustained. There are no embarrassments arising from complicated .or conflicting rights of different parties which would justify this court sitting as a court of equity in taking jurisdiction of the controversy.

The other ground upon which the plaintiff relies is equally untenable. He alleges that he conveyed to Blood a tract of land the southerly half of which is now owned by Miller by subsequent conveyance from Blood, and that at the time of the conveyance to Blood it was understood and agreed, although not expressed in the, deed, that all buildings put upon the land by Blood and his assigns should be built below the lower line of the plaintiff’s house, and further avers that the defendant, since the conveyance to him, has proceeded to erect a house and barn upon the land so conveyed, which are above the line referred to.

It is unnecessary to consider what would be the effect of the understanding or agreement as alleged to have been made with Blood. It was apparently verbal, and no consideration for it is suggested, unless we are to infer one from the fact that a conveyance of land was made to him by the plaintiff. But even if it were an agreement binding upon Blood, it cannot affect those who purchase the land without knowledge of its existence. There is no averment that the defendant had any such knowledge; and as it was not expressed in the deed, he has a right to enjoy the title which, by that deed, Blood was empowered to convey to him unaffected by it. Demurrer sustained.