Roy v. Moore

• Decision Date: 09 February 1912
• Court: Connecticut Supreme Court
• Parties: ROY et al. v. MOORE.

82 A. 233

85 Conn. 159

ROY et al. v. MOORE.

Supreme Court of Errors of Connecticut.

February 9, 1912

Appeal from Court of Common Pleas, Litchfield County; Gideon H Welch, Judge.

Action by Jerry J. Roy and others against Burton E. Moore. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Certain cross-examination of defendant who claimed title to land held proper.

Richard T. Higgins and Thomas J. Wall, for appellants.

Warner & Landon and Samuel A. Herman, for appellee.

WHEELER, J.

One ground of error is alleged to be the refusal of the court to grant to the plaintiffs a jury trial of the questions of fact in issue. This case was duly placed on the jury docket by the plaintiffs, issues were joined, and the plaintiffs seasonably filed their notice requesting that all the issues of fact therein be tried to the jury. The case was regularly assigned for trial as a jury case, and the trial about to begin, when the defendant moved that the equitable issues be tried to the court before the trial to the jury of the other issues. The motion was granted and the case continued. Amendments to the pleadings were subsequently filed, and after issue was again joined the plaintiffs again duly gave notice that they desired all the issues of fact tried to the jury. Thereafter on motion the court ordered " Equitable issues to be tried to the court and to be tried first." After trial had, the court found the equitable issues in favor of the defendant, and adjudged that the plaintiffs are not entitled to an injunction nor to damages. The parties went to trial upon the issue of the ownership and possession of a strip of land lying on the east side of the Wakefield Boulevard, and being about 600 feet in length by about 20 feet in width at the northerly end and 45 feet in width at the southerly end, upon a part of which strip the trespasses complained of were alleged to have been committed. The plaintiffs seek to recover damages for the trespasses, and for an injunction against their further continuance.

The plaintiffs' constitutional right to a jury trial depended upon whether it existed prior to the adoption of the Constitution. Article 1, § 21; La Croix v. Co. Com., 50 Conn. 321, 327, 47 Am.Rep. 648.

General Statutes 1902, § 720, as amended Public Acts 1905, c. 56, § 1, providing that at the request of either party " civil actions involving such an issue of fact as, prior to January first, 1880, would not present a question properly cognizable in equity," shall be entered in the docket as jury cases, was not intended to and did not abridge this right. It was permissible for the plaintiffs to seek both remedies-trespass to secure damages, and injunction to restrain the trespasses-in a single action, and to cause the case to be entered on the jury docket within 30 days after the return day provided the action was a " civil action involving such an issue of fact as, prior to January first, 1880, would not present a question properly cognizable in equity." Nowsky v. Siedlecki, 83 Conn. 109, 112, 75 A. 135.

" Properly cognizable in equity" means capable of being judicially heard and determined in equity. Under this statute when a single issue of fact is joined after said 30-day period in a civil action which prior to January 1, 1880, would not present a question properly cognizable in equity, the case may, within 10 days thereafter, be entered as a jury case upon the request of either party to the clerk. Under section 722, as amended Public Acts 1905, c. 56, § 3, " If more than one issue of fact be joined in a cause upon the docket as a jury case either party may, and the party placing it upon the docket as a jury case shall, within three weeks after the issues are joined," file with the clerk a written notice of what issues he desires tried to the jury. Whether or not the plaintiffs were entitled to a jury trial on some or all of the issues of fact in the case depended upon whether these were properly triable to the jury under section 720, and whether they had seasonably brought themselves within the procedure of the statute.

The issues of fact upon which a jury trial is claimed are those of title, possession, and damages. The controversy is thus confined to a single inquiry, Were the plaintiffs prior to January 1, 1880, entitled, as of right, to try the issues of title, possession and damages to the jury? The issue of damages is controlled by those of title and possession. Ordinarily equity will not try title. It extends its protection to undoubted rights, and leaves doubtful or contested rights to be first adjudicated at law, and, if the emergency warrants it, restrains the continuance of the trespasses pending the decision. Injunction is not a form of equitable relief designed to try title. It cannot be made the substitute for an action of trespass or ejectment. The adjudication upon the issue of the trespasses involves the issues of title and possession. When the trespasses complained of work irreparable injury injunction may lie. Lawton v. Herrick, 83 Conn. 417, 425, 76 A. 986; Gorham v. New Haven, 82 Conn. 156, 157, 72 A. 1012. And will lie provided the complainant's title is not in doubt or conflict and he has the actual possession. Under the modern doctrine of equitable interference to restrain continuing trespasses, equity will act only in a case where the complainant's title is either admitted or not denied, or is established at law, or has been long enjoyed and where the complainant is in actual possession, or perhaps in cases where irreparable injury will be likely to result from noninterference, which is not this case. When the title and possession are not in dispute, the court having jurisdiction may proceed to final judgment. When the title is in dispute, or doubtful, or has not been long enjoyed, or the possession is not in the complainant, equity will leave the parties to settle the title and possession at law, and pending such adjudication will issue a temporary injunction restraining the continuance of the trespasses.

In the case at bar the complaint sets up that the trespasses complained of were committed under a claim of ownership, and the second defense specifically sets up the defendant's title. Further, the defendant claims to be in possession of the part of the premises where the trespasses are alleged to have been committed and upon a considerable part of the premises no trespasses are alleged to have been committed. The plaintiffs' title and actual possession were both contested, hence the greatest exercise of equitable power by the court in view of the dispute as to title and possession and the motion of the plaintiffs for a jury trial of the issues of fact, duly made, would only permit the issuance and continuance of a temporary injunction preserving the status quo pending the adjudication at law of title and possession.

The authorities are numerous and generally support these conclusions. Spelling on Extraordinary Remedies, § 367, summarizes clearly and accurately the prevailing view and practice of the present day: " (1) Where the bill states facts which show that a threatened trespass if not prevented will result in irreparable damage, or is in its character and tendency destructive to the inheritance, or to that which gives it its chief value, an injunction will be granted notwithstanding a dispute, or even pending litigation as to the title. (2) Where an action has been already commenced to try the title the injunction will be only temporary, to be dissolved or made perpetual according to the results of the action. (3) Where no action has been already begun, an injunction will be granted and continued to give the defendant an opportunity to bring an action which, being brought and successfully prosecuted to judgment against the complainant in possession, will entitle him to a dissolution of the injunction; but if the action at law has an opposite result the injunction will be perpetuated."

Our own court early announced its agreement with this doctrine. In Falls Village Water Power Co. v. Tibbetts, 31 Conn. 165, 168, in discussing a claim that the facts did not show such a title as would justify the interposition of the court by injunction, we said: " Unquestionably the interference of a court of equity by injunction, in a case of trespass to land, and when an action at law will lie, is of modern origin, and an exercise of power to be justified only in a case of great and irreparable injury. Doubtless, too, the petitioner who invokes it, in conformity with principle and precedent, should show at least a strong prima facie case of a right. In the earlier cases the title was not in dispute, and in the later ones, when it has been and has been doubtful, the court have refused to interfere. In Roath v. Driscoll, 20 Conn. 533, 52 Am.Dec. 352, this court said that they would not interfere when the right was doubtful; and to that principle we adhere." We gave express sanction to this practice in Spencer v. N.Y. & N.E. R. Co., 62 Conn. 242, 243, 25 A. 350, 351-an action for obstructing a way with a prayer for an injunction pendente lite-when we said: " It is certainly competent for a party to invoke the aid of a court of equity to protect his alleged legal right by staying the hand of the opposite party from destroying it pending litigation; and it is equally his privilege to have the questions as to the existence of his legal right tried and determined by a jury." Washburn v. Miller, 117 Mass. 376, 377; Cummings et al. v. Barrett et al., 10 Cush. (Mass.) 186, 190; Erhardt v. Board, 113 U.S. 537-539, 5 Sup.Ct. 560, 28 L.Ed. 1113; Irwin v. Dixion, 9 How. 6, 9, 10, 13 L.Ed. 25; Cosmos Co. v. Gray Eagle Co., 190 U.S. 301, 305, 23 Sup.Ct. 692, 47 L.Ed. 1064; N.J. R. R. v. Woodward, 61...