Cincinnati, B.&C.R.R. v. Wall
| Decision Date | 14 November 1911 |
| Docket Number | No. 7,301.,7,301. |
| Court | Indiana Appellate Court |
| Parties | CINCINNATI, B. & C. R. R. v. WALL. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.
Action by Robert Wall against the Cincinnati, Bluffton & Chicago Railroad. From a judgment for plaintiff, defendant appeals. Affirmed.
Lesh & Lesh, for appellant. Branyan Bros., for appellee.
The complaint in this case shows that, by deed duly executed by himself and wife to an agent of appellant, appellee conveyed a strip of ground 60 feet wide, which was accepted and occupied by appellant as a right of way; that as a part of the consideration for the conveyance it was provided in the deed that the grantee should construct “a standard fence of woven wire with barb on top, sufficient to turn all kinds of stock and will permanently maintain a good and lawful fence.” The complaint further avers facts showing that appellant was threatening and preparing to erect and maintain at the place designated in the deed a fence that was defective, unlawful, and insufficient to turn stock of all kinds; that the wires were of flimsy material and insufficient in size and strength, and the spaces between them were too wide, and the posts too far apart, to make a good fence; that the fence should not be less than 4 feet high, and the one about to be erected was only 45 inches high and would be of little value to appellee because the same would not turn hogs and other stock he desired to pasture upon his land adjoining the right of way along which the proposed fence was about to be erected; that the erection of said proposed fence “will be an irreparable injury to” appellee and in violation of the terms of said deed; that the appellant was insolvent. Issue was joined by general denial; trial by court resulting in a judgment enjoining appellant from erecting the proposed fence described in the complaint.
The errors assigned are: (1) Overruling demurrer to the amended complaint; (2) the amended complaint does not state facts sufficient to constitute a cause of action; (3) overruling motion for a new trial.
A demurrer for want of facts was filed to the original complaint. Pending the ruling upon the demurrer an amended complaint was filed; but the demurrer was not refiled, though it was afterwards overruled and exception taken.
[1] The complaint to which the demurrer was addressed went out of the case when the amended complaint was filed, and the ruling upon the demurrer filed before the amended complaint presents no question as to the sufficiency of the amended complaint.
[2] If the demurrer had been filed after the amended complaint was on file, the fact that it did not designate the pleading as an amended complaint would be immaterial, as the amended complaint was the only one then before the court. Chicago, I. & L. Ry. Co. v. Stepp, Adm'x, 44 Ind. App. 353, 88 N. E. 343;Scott v. Lafayette Gas Co., 42 Ind. App. 614, 86 N. E. 495;City of Vincennes v. Spees, 35 Ind. App. 389-393, 74 N. E. 277.
[3] The complaint omits no essential element of recovery and is sufficient at least to bar another action, so that when first questioned after judgment by independent assignment of error it is sufficient. Oliver Typewriter Co. v. Vance, 95 N. E. 327;Forrest et al. v. Corey, 29 Ind. App. 159, 64 N. E. 45.
[4] It is contended that the complaint is insufficient and the judgment erroneous because it appears that the appellee has an adequate remedy at law. The appellee had a remedy at law for damages for breach of the covenant in his deed; but it is not sufficient ground for denying an injunction that there is a legal remedy, unless it also appears that the remedy at law is as full and adequate as the remedy in equity.
It fully appears in this case, both from the complaint and the evidence, that the fence to be erected was along the right of way of a railroad, and that the adjoining premises were used for grazing and agricultural purposes. These facts distinguish the case from cases dealing with the ordinary contracts relating to fences and other structures.
The rule is, firmly established in this state that a party will be granted injunctive relief, even though he may have a clear legal remedy, if the remedy at law is not as prompt, practical, efficient, and adequate as that afforded by equity. The location of this proposed fence makes this rule peculiarly applicable here, for it is unreasonable to say that appellee's remedy for damages which would be available after his stock had escaped from the inclosure and possibly been lost or killed, is as adequate and practical as the remedy by injunction. Brugh et al. v. Denman, 38 Ind. App. 486-489, 78 N. E. 349;Hatfield et al. v. Mahoney et al., 39 Ind. App. 499-505, 79 N. E. 408, 1086;Ingle v. Bottoms, 160 Ind. 73-81, 66 N. E. 160;Chappell et al. v. Jasper Co. Oil & Gas Co., 31 Ind. App. 170-172, 66 N. E. 515;Miller et al. v. Bowers, 30 Ind. App. 116-118, 65 N. E. 559;Denny et al. v. Denny, 113 Ind. 22, 14 N. E. 593;Beatty v. Coble, 142 Ind. 329, 41 N. E. 590;Sullivan v. Kohlenberg, 31 Ind. App. 215, 67 N. E. 541.
There is another well-established rule which sustains the right to injunctive relief in this case. This rule is stated in High on Injunctions (4th Ed.) § 12, as follows: “The prevention of vexatious litigation and of a multiplicity of suits constitutes a favorite ground for the exercise of the jurisdiction of equity by way of injunction; and it may be laid down as a general rule that whenever the rights of a party aggrieved cannot be protected or enforced in the ordinary course of proceedings at law, except by numerous and expensive suits, a court of equity may properly interpose and afford relief by injunction.” To the same effect are: Owen et al. v. Phillips et al., 73 Ind. 284-294;Lake Erie & Western R. Co. v. Young, 135 Ind. 426-431, 35 N. E. 177, 41 Am. St. Rep. 430;Vandalia Coal Co. v. Lawson, 43 Ind. App. 226-243, 87 N. E. 47;Gray, Auditor, v. Foster, 46 Ind. App. 149-153, 92 N. E. 7;Stovall v. McCutchen et al., 107 Ky. 577-581, 54 S. W. 969, 47 L. R. A. 287, 92 Am. St. Rep. 373;Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567;Lonsdale Co. v. City of Woonsocket, 21 R. I. 498, 44 Atl. 929.
The fact that we have a statute under which the landowner may proceed to build a fence affords no ground for an exception to the above rule or for the denial of injunctive relief where the parties have seen fit to enter into a contract fully stating their respective rights and duties.
Here the remedy at law for violation of the contract would be available whenever appellee suffered loss or damage occasioned by the insufficient and defective fence, and the number of such suits would be limited only by the number of such occurrences.
[5] There is also another rule applicable in cases of this character. In Pomeroy's Equity Jurisprudence (3d Ed.) § 1341, it is said:
If the contract in question here is one that can be enforced by specific performance, then it comes within the rule established by the overwhelming weight of authority that equity will interpose to prevent the violation of a contract that may be so enforced. In some exceptional cases equity will grant relief by injunction where specific performance of the contract cannot be enforced. To be entitled to enforce a contract by specific performance, it must appear that it is founded upon a valuable consideration, is complete and definite in its terms, as well as fair and just in all its parts. It must be capable of being specifically enforced against both parties without adding to its provisions and be capable of enforcement without hardship to either party. The absence of a legal remedy must appear, or, if there be such remedy, it must be shown not to be so plain and adequate or as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. 26 Am. & Eng. Enc. Law, p. 38; L., N. A. & C. Ry. Co. v. Bodenschatz, 141 Ind. 251-263, 39 N. E. 703;Ikred et al. v. Beavers, 106 Ind. 483-485, 7 N. E. 326;Fairchild v. Dement et al. (C. C.) 164 Fed. 200;McRae v. Smart et al., 120 Tenn. 413, 114 S. W. 729.
[6] The appellant, by the covenants of the deed...
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