Davis v. Weymouth
| Decision Date | 15 March 1888 |
| Citation | 14 A. 199,80 Me. 307 |
| Parties | DAVIS v. WEYMOUTH. |
| Court | Maine Supreme Court |
On demurrer. From supreme judicial court, Penobscot county.
Bill in equity to obtain the removal of an obstruction from a private way. Defendant demurred to the bill.
Davis & Bailey, for plaintiff. Chas. P. Stetson, for defendant.
The plaintiff has mistaken his remedy. A bill in equity does not lie to obtain the removal of fences, buildings, or other unlawful obstructions from a public way or private way. The statutes of the state provide a full and complete remedy for such a wrong by an action at law. Such obstructions are a nuisance, (Rev. St. c. 17, § 5,) and any person injured thereby in his comfort, property, or the enjoyment of his estate may not only maintain an action against the offender to recover his damages, but he may, in the same action, obtain a warrant for the abatement or removal of the nuisance, unless the defendant will undertake and enter into a recognizance with surety to abate or remove it himself. And pending the action the plaintiff may, in proper cases, obtain from the court an injunction to stay or prevent the nuisance. Id. § 12 et seq. The remedy thus provided, by an action at law, is plain, adequate, and complete, and there is no occasion for a resort to a bill in equity. Varney v. Pope, 60 Me. 192. Demurrer sustained. Bill dismissed, with costs.
1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.
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