Cincinnati, Bluffton And Chicago Railroad v. Wall

• Decision Date: 14 November 1911
• Docket Number: 7,301
• Citation: 96 N.E. 389,48 Ind.App. 605
• Parties: CINCINNATI, BLUFFTON AND CHICAGO RAILROAD v. WALL
• Court: Indiana Appellate Court

96 N.E. 389

48 Ind.App. 605

CINCINNATI, BLUFFTON AND CHICAGO RAILROAD v. WALL

No. 7,301

Court of Appeals of Indiana

November 14, 1911

From Huntington Circuit Court; Samuel E. Cook, Judge.

Suit by Robert Wall against the Cincinnati, Bluffton and Chicago Railroad. From a decree for plaintiff, defendant appeals.

Affirmed.

Lesh & Lesh, for appellant.

James C. Branyan, John S. Branyan and Wilbur E. Branyan, for appellee.

OPINION

FELT, P. J.

The complaint shows that by deed, duly executed by appellee and his wife to an agent of appellant, a strip of ground sixty feet wide was conveyed by appellee, and 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 barbs on top, sufficient to turn all kinds of stock and should permanently maintain a good and lawful fence."

The complaint further averred that appellant was threatening and preparing to erect and maintain, at the place designated in the deed, a fence that was unlawful, and was insufficient to turn stock of all kinds; that the wires were of flimsy material, insufficient in size and strength, the spaces between them were too wide, and the posts were too far apart to make a good fence; that the fence should be not less than four feet high, while the one to be erected was only forty-five inches high, and would be of little value to appellee, because it 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 to be erected; that the erection of said proposed fence would cause irreparable injury to appellee, and in violation of the terms of said deed; that appellant was insolvent.

Issue was joined by general denial. A trial by the court resulted in a decree restraining appellant from erecting the proposed fence.

The errors assigned are (1) the overruling of the demurrer to the amended complaint, (2) the failure of the amended complaint to state facts sufficient to constitute a cause of action (3) the overruling of the 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.

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 was filed presents no question as to the sufficiency of the amended complaint.

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, etc., R. Co. v. Stepp (1909), 44 Ind.App. 353, 88 N.E. 343; Scott v. LaFayette Gas Co. (1908), 42 Ind.App. 614, 86 N.E. 495; City of Vincennes v. Spees (1905), 35 Ind.App. 389 74 N.E. 277.

The complaint omits no essential element of recovery, and is sufficient to bar another action, so that when first questioned after judgment by independent assignment of error it is sufficient. Oliver Typewriter Co. v. Vance (1911), ante, 21; Forrest v. Corey (1902), 29 Ind.App. 159, 64 N.E. 45.

It is contended that the complaint is insufficient, and that the judgment is erroneous, because it appears that appellee has an adequate 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, from both 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 enclosure, and, possibly, had been lost or killed, is as adequate and practical as the remedy by injunction. Brugh v. Denman (1906), 38 Ind.App. 486, 78 N.E. 349; Hatfield v. Mahoney (1907), 39 Ind.App. 499, 79 N.E. 408; Ingle v. Bottoms (1903), 160 Ind. 73, 66 N.E. 160; Chappell v. Jasper County, etc., Gas Co. (1903), 31 Ind.App. 170, 66 N.E. 515; Miller v. Bowers (1902), 30 Ind.App. 116, 65 N.E. 559; Denny v. Denny (1887), 113 Ind. 22, 14 N.E. 593; Beatty v. Coble (1895), 142 Ind. 329, 41 N.E. 590; Sullivan v. Kohlenberg (1903), 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 1 High, 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 the following cases: Owen v. Phillips (1881), 73 Ind. 284, 294; Lake Erie, etc., R. Co. v. Young (1893), 135 Ind. 426, 431, 41 Am. St. 430, 35 N.E. 177; Vandalia Coal Co. v. Lawson (1909), 43 Ind.App. 226, 87 N.E. 47; Gray v. Foster (1910), 46 Ind.App. 149, 92 N.E. 7; Stovall v. McCutchen (1900), 107 Ky. 577 at 577-581, 54 S.W. 969, 47 L. R. A. 287, 92 Am. St. 373; Campbell v. Seaman (1876), 63 N.Y. 568, 20 Am. Rep. 567; Lonsdale Co. v. City of Woonsocket (1899), 21 R.I. 498, 44 A. 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 rule just stated, 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 violating 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.

There is another rule applicable in cases of this character. In 4 Pomeroy, Eq. Jurisp. (3d ed.) § 1341, it is said: "An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules; and it may be stated as a general proposition that wherever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which its terms permit. * * * The universal test of the jurisdiction, admitted alike by the courts of England and of the United States, is the inadequacy of the legal remedy of damages in the class of contracts to which the particular instance belongs."

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 on a valuable consideration, is complete and definite in its terms, and fair and just in all its parts. It must be susceptible of being specifically enforced against both parties, without adding to its provisions, and be susceptible 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. and Eng. Ency. Law (2d ed.) 38; Louisville etc., R. Co. v. Bodenschatz Stone Co. (1895), 141 Ind. 251 at 251-263, 39 N.E. 703; Ikerd v. Beavers (1886), 106 Ind. 483, 485, 7 N.E. 326; Fairchild v. Dement (1908), 164 F. 200; McRae v. Smart (1907), 120 Tenn. 413, 114 S.W. 729.

By the covenants of the deed, which constitute the contract in this case, appellant is bound to construct "a standard fence of woven wire, with barbs on top, sufficient to turn all kinds of stock." These specifications are so definite and certain as to enable a court to enforce the contract without adding to its terms. If necessary, the rule may be invoked that parol testimony may be heard, not to add to or vary the terms of the contract, but to apply it to its subject-matter. 26 Am. and Eng. Ency. Law (2d ed.) 38; Colerick v. Hooper (1852), 3 Ind. 316, 317 56 Am. Dec. 505; Tewksbury v. Howard (1894), 138 Ind. 103, 106, 37 N.E. 355; Cutsinger v. Ballard (1888), 115 Ind. 93, 95, 17 N.E. 206; Burke v. Mead (1902), 159 Ind. 252, 64...