Boston & M.R.r. v. Sullivan

• Decision Date: 08 December 1900
• Parties: BOSTON & M. R. R. v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 230

58 N.E. 689

BOSTON & M. R. R. v. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Essex.

December 8, 1900

COUNSEL

De Courcy, Coulson & Cox, for plaintiff.

J. P Sweeney and H. R. Dow, for defendants.

OPINION

LATHROP J.

There can be no doubt that the defendants illegally trespassed upon the plaintiff's land, and this was practically conceded at the argument. Railroad Co. v. Tripp, 147 Mass 35, 17 N.E. 89; Railroad Co. v. Brown (Mass.) 58 N.E. 189. The only question of importance, then, is whether the plaintiff should have resorted to an action at law, as was done in the two cases cited, or whether it is also entitled to maintain a bill in equity. The facts show that the defendants have been guilty of trespasses, which they propose to continue. The ownership of the plaintiff is admitted, and no question of title is involved. Nor is any claim to a right of way over the plaintiff's land set up in the answer of the defendants. It seems to us clear that the bill in this case may be maintained. If the plaintiff were to sue at law, the amount recoverable could not be large, in comparison with the amount expended in litigation and every trespass would give a new right of action. Hence there would arise a great multiplicity of suits. At some time the plaintiff would be entitled to the protection of a court of equity, and there is no reason why, on the facts of this case, the remedy by injunction should not be granted at once. This court has now full jurisdiction in equity, and can put in force the remedies appropriate to that jurisdiction. The language of Sir W. M. James, L. J., in the case of Goodson v. Richardson, 9 Ch. App. 221, 226, is very appropriate to this case: 'The defendant in this case is admittedly a trespasser. He has committed a trespass upon the plaintiff's land without any legal justification or any legal excuse whatever, and he proposes to continue that trespass from day to day, * * * for the purpose of making profit of a trade which he proposes to set up in rivalry to a trade which the owner of the land upon which he is so committing the trespass is interested in. It is said that we ought to allow this to be done; that we ought, in fact, to dismiss the plaintiff from this court, and tell him to find his way to another court, in which he is to bring an action for the wrong, for which there is no defense whatever. He is to bring that action at his own cost, and, having succeeded in one action, he is to bring a second (I do not know whether more than one will be required); and then, having succeeded in one action, or two actions, or perhaps three actions, all of which, on the facts proved in this case, would necessarily result in verdicts for him, he is to come back to this court and obtain a perpetual injunction, on the ground of repeated vexation and repeated action. I do not think there is any principle in this court which will compel us to drive the plaintiff to go through all that litigation before he is entitled to that relief which he would ultimately get when he had gone through it.' In the same case it was said by Lord Chancellor Selborne: 'I cannot look upon this case otherwise than as a deliberate and unlawful invasion by one man of another man's land for the purpose of a continuing trespass, which is in law a series of trespasses from time to time, to the gain and profit of the trespasser, without the consent of the owner of the land; and it appears to me, as such, to be a proper subject for an injunection.' See, also, Allen v. Martin, L. R. 20 Eq. 462; Lembeck v. Nye, 47 Ohio St. 336, 24 N.E. 686, 8 L. R. A. 578; Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 So. 298; Emigration Co. v. Gallegos, 32 C. C. A. 470, 89 F. 769, 773; Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 161, 36 A. 1107; Musselman v. Marquis, 1 Bush, 463; Ellis v. Wren, 84 Ky. 254, 1 S.W. 440; 3 Pom. Eq. Jur. § 1357; 1 Spell. Extr. Relief, § 342; 1 Beach, Inj. § 523. The case at bar is distinguishable from Washburn v. Miller, 117 Mass. 376. There a question arose as to the...