58 Mich. 482 | Mich. | 1885
This is a general demurrer for want of equity to a bill of complaint filed by the complainant against the defendant to abate a private nuisance. The material allegations of the bill are that the complainant is the owner of lot 15, in block 10 of Bostwick and Co.’s addition to the city of Grand Bapids, except a strip six feet in width, front and rear, off from north of said lot; that her lot is forty-four feet in width, fronting on Sheldon street, and constitutes her homestead; that defendant owns the land next to and adjoining her land on the north; that a line fence marks the boundaries of their respective lands; that defendant commenced the erection of a barn upon his premises so near the line that she feared the cornice would project over upon her premisos; that she made inquiries of defendant as to whether he intended to construct a cornice over her premises, but could obtain no information from him as to his intentions; that she warned him that he must not so construct his barn as to cause any part of it to project over her premises. Nevertheless defendant built his barn near the line, and constructed a cornice which projects over her premises a distance of sixteen inches at the west end, and six inches at the east end, and covers a distance of twenty-one feet in length; that the cornice is
The defendant claims that the bill states no case for equitable relief — -first, because it appears by the bill that there is a dispute about the boundary; and second, complainant has an adequate and complete remedy at law, in an action of trespass or trespass upon the case, an’d because the injury does not appear to be irreparable, since she states the depreciation in the market value of her homestead will be at least $500, and it is not alleged that defendant is pecuniarily irresponsible and unable to respond in damages at least to that amount.
A general demurrer challenges the equity of the case made by the bill, and must be overruled if a case for equitable relief is set out, however imperfectly. Glidden v. Norvell 44 Mich. 206; Hoffman v. Ross 25 Mich. 175; Clark
How. Stat. ch. 273, provides a remedy, where the plaintiff prevails in an action on the case for a private nuisance, for the abatement of the same. It is quite evident that there may be cases where the present injury would be so inconsiderable to the mind of a jury that, although the nuisance complained of might be of the most annoying kind, they might fail to give the.plaintiff a verdict for damages. This statute does not take away the jurisdiction of a court of equity; but affords a concurrent remedy ; and we can see no good reason for turning the complainant out of a court having full and complete jurisdiction to seek her remedy in a court having not greater but more limited power to afford complete and adequate relief. Fraedrich v. Fliette 25 N. W. Rep. 28: 63 Wis. ; Denner v. Chicago, Milwaukee & St. Paul Ry. Co. 57 Wis. 218.
The statement that the depreciation of her property will be at least $500 does not deprive the party of relief in a court of equity. The object of the pleader in making the averment was doubtless to show that the injury exceeded $100. We do not feel called upon to say, upon this record, whether an averment of the kind is necessary in cases of nuisance, nor that a suit in equity must fail if the proofs should disclose that the damage was less than $100.
Irreparable injury, in the sense in which it is used in con
The decree of the court below is affirmed with costs. The record will be remanded, with leave for defendant to answer in twenty days .on complying with the order of the court below as to payment of costs.