144 Ala. 402 | Ala. | 1905
While it is an elementary rqle that in order for a complainant to invoke the aid of a court of equity, it must appear that he has no plain and adequate remedy at law, there are some instances where the remedy at law cannot give adequate redress, and when such a condition exists the injured or threatened party can seek the protection of a court of equity. — Cen. Digest, Equity Vol. 19, §§ 151, 154. But a complaining party cannot use a court of equity for the sole purpose of avoiding an action at law which would afford adequate redress, simply because it is more expedient or com enient for him to do so. — Yellow Pine Export Co. v. Southerland, 37 So. Rep. 922; 16 Am. & Eng. Ency. Law, p. 364.
If the wrong charged be only a naked trespass, containing no elements of damage, which cannot be redressed by an action at law, a bill would be without equity which seeks to enjoin such a trespass. — Wadsworth v. Goree, 96 Ala. 227; High on Injunctions, §§ 713, 728;
“To justify injunction in such case, there must be something1 special in the case made, which a court of law cannot adequately redress.” — Wadsworth v. Goree, supra; 3 Pom. Eq. Ju. § 1347; High on Injunctions, §§ 673, 699, 713; Lyon v. Hunt, 11 Ala. 295.
“In ordinary trespasses the injured party is left to'his remedy of damages, but the circumstances of a trespass to property — especially to real property — may be such that the compensatory remedy is inadequate, and a court of equity will prevent the wrong by injunction.” — 3 Pom. Eq. Ju. § 1347. And this seems to be the rule, aside from consideration of insolvency, waste or spoilation of the realty.
By the averment of the bill in the case at bar, the damages resulting from the wrong complained of cannot be compensated for in an action at law. It avers an interference with the business of the complaint which would not only deprive him of the free use of his property, but would prevent the manufacture by him of lime, at such time that the kiln could be operated at a profit, thus depriving him of said profits not recoverable in an action at law.
The complainant’s possession of the lime kiln is questioned by the answer and proof, but the evidence is undisputed that the plaintiff recovered forty acres of land, less a strip described in the judgment and was put in possession of the premises set out in thé writ of possession. The slip exceeded from the the writ of possession purports to contain thereon the lime kiln in question, but the sheriff’s return recites that it was not on the strip and the weight of evidence shows that it is situated on the land recovered by the complainant and was included in the writ of possession in his favor. While the judgment recites that the kiln was situated on this strip, yet it attempts to accurately describe the strip, and under the former rulings of this court, where there is a conflict between a general and special description of land the latter must prevail.
The chancellor erred in denying relief to the complaint as against Ben Meyer and Simon Stein and the decree in that respect must be reversed.
The decree of the chancery court is reversed and the • cause is remanded.