Winslow v. Nayson
113 Mass. 411
Mass.
1873
Check Treatment
Gray, C. J.

The complaint against the defendant Nay son has been irregularly treated as a distinct cause, and entered upon the docket as such. It is really but an incident to the principal suit, and all the papers relating to it should be filed with the other papers in the case. These observations are made to prevent similar irregularities in the future. In the present case, they are comparatively immaterial, because the plaintiffs have failed to make out the contempt charged.

The authorities cited by the learned counsel for the plaintiffs show that when the court has pronounced an order for the immediate issue of an injunction, a person who has actual notice that the order has been made, and disobeys it, may be held guilty of a contempt, even before the injunction has been issued, or the order has been formally drawn up or served upon him. But such is not this case.

The second rule in chancery provides that no injunction or other proceeding shall be ordered until the bill is filed, unless for good cause shown. 104 Mass. 568. The purpose of this rule is obvious. It is that, except in cases of urgent necessity requiring instant action, the extraordinary powers over persons and property, with which a court of chancery is vested, shall not be exercised before the plaintiff’s statement of his grievances has been filed in the clerk’s office; and that the evidence of the exercise af these powers shall appear upon the records of the court, open to the inspection of defendants and of all persons concerned, and not be put in the control of plaintiffs or their solicitors, to be disclosed, withheld or misrepresented, as their interests or caprices may dictate.

The justice to whom this bill was presented, apparently intending to act, as nearly as the circumstances would allow, in the spirit of that rule, ordered that, upon the filing of the bill, an injunction should issue. The order for an injunction was conditional upon the filing of the bill. Until the bill had been filed, no injunction was granted. The plaintiffs’ solicitor, without perfecting the right to an injunction by filing the bill, sent a telegram *421to his wife, directing her to tell the plaintiffs’ tenant to notify the defendant that “ an injunction has been granted,” which was not the fact, either when the telegram was sent, or when it was read to the defendant early the next morning, for the bill had not-yet been filed. We would not be understood to intimate that, if it had been, a defendant would have been bound to give any credence or weight to a notice transmitted in such a circuitous and irregular manner. There can certainly be no disobedience of an order which has not taken effect. The reply of this defendant Nayson to the plaintiffs’ tenant shows that, while he did intend, as he lawfully might, to assert with promptness and vigor against the plaintiffs the authority which the defendants claimed to be vested in them in behalf of the public, he was ready to obey any order of the court as soon as he had due notice of its existence. No such notice was given until the afternoon of the same day, when the writ of injunction was shown to him by the plaintiffs’ solicitor, by whose opinion as to the validity of the notice he at once offered to be governed. And the report does not show that after this notice any work was done by the defendants. The motion for an attachment is therefore denied.

But under the bill, the plaintiffs, upon the facts found at the hearing, are entitled to the relief which they seek. Having maintained their fence in the same' place for forty years, they had the right to keep it there as against the public. Gen. Sts. c. 46, § 1. Cutter v. Cambridge, 6 Allen, 20. The defendants, acting as public officers, under an unfounded claim of authority to appropriate the plaintiffs’ land to the use of the public for a highway, having unlawfully removed a part of the fence, and dug away the soil to such a depth as to make the access to the land from the highway inconvenient and unsafe, should be restrained from doing further mischief, and the injunction must be made perpetual. Boston Water Power Co. v. Boston Worcester Railroad Co. 16 Pick. 512, 525. Kerr on Injunctions, 295, 296. And the court, having obtained jurisdiction in equity of the case for this purpose, may properly, in order to prevent multiplicity of suits and to do complete justice between the parties, under the prayer or general relief, also award damages for the injury already done *422by the defendants to the plaintiffs’ premises, instead of obliging them to bring á separate action at law therefor. Jesus College v. Bloom, 3 Atk. 262; S. C. Ambl. 54. Cathcart v. Robinson, 5 Pet. 263, 278. Franklin v. Greene, 2 Allen, 519. Creely v. Bay State Brick Co. 103 Mass. 514. Milkman v. Ordway, 106 Mass. 232. Brown v. Gardner, Harringt. Ch. 291.

Neither party having moved to have an issue framed for the submission to a jury of the question of the amount of such damages, they may be assessed by a master, unless the parties agree upon the amount. Upon such agreement, or the return and acceptance of the master’s report, the plaintiffs will be entitled to a final decree, with costs, except- so far as the costs have accrued upon the motion for an attachment for contempt.

Decree accordingly.