Ates v. Wills
| Decision Date | 27 June 1922 |
| Docket Number | No. 17122.,17122. |
| Citation | 243 S.W. 187 |
| Parties | ATES v. WILLS et al., Board of Directors of School District D No. 11 in Cape Girardeau County. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.
"Not to be officially published."
Action by William Ates against D. M. Wills and others, composing the Board of Directors of School District D No. 11 in Cape Girardeau county. From an order enjoining defendants from erecting a schoolhouse on plaintiff's land, defendants appeal. Affirmed.
W. J. Roberts, of Oak Ridge, and Edward Robb, of Perryville, for appellants.
Samuel Bond, of Perryville, for respondent.
Action in chancery to enjoin the defendants, who are the board of directors of a school district in Cape Girardeau county, Mo., from occupying a portion of plaintiff's land and building thereon a schoolhouse.
The cause was originally brought in the Cape Girardeau court of common pleas, where a temporary injunction was granted enjoining the defendants from erecting a schoolhouse on plaintiff's land.
Thereafter, upon an application for a change of venue, the cause was transferred to the Perry county circuit court, where, upon the trial on its merits, the court found the issues in favor of the plaintiff and ordered and adjudged that the temporary injunction granted by the Cape Girardeau court of common pleas be made permanent. From this judgment the defendants appealed.
The errors assigned upon which the defendants (appellants here) rely fop a reversal of the judgment are in effect: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the evidence in the case fails to show that plaintiff is entitled to the relief prayed for.
The complaint states, In substance, that the defendants were the duly elected, qualified, and acting members of the board of directors of school district D No. 11 of Cape Girardeau county, Mo.; that, acting for said school district, in the month of May, 1918, they entered upon plaintiff's land, without authority of law and in violation of the rights of plaintiff, and cut down certain trees on plaintiff's land, and staked off the site for a foundation for the erection of a schoolhouse so that the same, if erected, would stand partly on the premises of the plaintiff; that, although plaintiff notified defendants of his rights in the premises and warned them to desist from the erection of said schoolhouse on said site, the defendants were proceeding with the work aforesaid and were threatening to complete the same; that the defendants openly and defiantly declared that they would erect the schoolhouse on the site aforesaid, and that they had undertaken to do said work and were doing and causing the same to be done; that they had not taken any steps whatever to obtain the consent of the plaintiff to the erection of said school on said site; and that they had not condemned or otherwise acquired title to said site or land so owned by the plaintiff.
The complaint further states that, if defendants were permitted to proceed with said work and to complete the erection of said schoolhouse on said site, the injury and damage to the plaintiff would be irreparable, and that the injury so to be caused by said defendants would not be susceptible of compensation in damages, and that plaintiff was without an adequate remedy at law.
The petition concludes with a prayer that the defendants, their agents and employees, be perpetually restrained and enjoined from erecting said schoolhouse on plaintiff's land and upon the said site staked off by them as a foundation for said schoolhouse, and for such other and further relief as to the court shall seem meet and just in the premises.
Defendants contend that the complaint is fatally defective in that it fails to allege that the defendants were insolvent and any facts showing that damages would be irreparable.
It is a familiar doctrine that injunction will not lie to restrain the commission of a mere trespass, where the injury would not be...
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