Deegan v. Neville

• Decision Date: 18 December 1900
• Citation: 127 Ala. 471,29 So. 173
• Parties: DEEGAN ET AL. v. NEVILLE.
• Court: Alabama Supreme Court

29 So. 173

127 Ala. 471

DEEGAN ET AL. v. NEVILLE.

Supreme Court of Alabama

December 18, 1900

Appeal from chancery court, Mobile county; Thomas H. Smith Chancellor.

Injunction by Henry Neville against William Deegan and others. From a decree overruling motions to dissolve a preliminary injunction and to dismiss the bill, respondents appeal. Reversed, and decree rendered for respondents.

The bill in this case was filed on September 24, 1900, by the appellee, Henry Neville, against the appellants, William Deegan, Michael Smith, and John McAdory. It was averred in the bill, as amended, that the complainant was in possession of a certain specifically described lot, and the buildings and improvements thereon, in the city of Mobile, under a lease to him for a term of years; that the defendants had before and at the time of filing the bill, continuously and willfully trespassed upon said premises, notwithstanding the complainant had repeatedly warned and requested them not to do so; that the respondents were from day to day filling his yard, back of the building occupied by him, with broken bricks, dust, and all kinds of débris, and were dropping the said bricks and débris from his roof, and from an elevated structure which they have erected over a portion of his premises, at such times and in such a manner as to render it dangerous for him to occupy or use the said portion of his premises; that they have broken and so damaged his water-closet that the water flowing from same has overflowed his yard so as to render the same a menace to health, on account of the unsanitary condition thereof; that they have and are nailing upon his walls and roof wooden supports and braces for another building, which render the said walls which are now already weak, unsafe. "And your orator avers that the said trespassing of the said respondents is being continued from day to day, and that the said respondents threaten to continue same, in utter disregard of your orator's request to them not to do so." It was then averred in the bill, as amended, that the injuries and trespasses complained of were continuous in their nature, and the danger of injury from the bricks and débris being dropped into the yard was continuous and imminent; that before the filing of the bill he had requested the defendants, in writing, to discontinue, but they had refused to do so. Then continuing, the bill, as amended, averred the following: "Your orator shows and submits unto your honor that his remedy at law for said continuous injuries and trespassing is entirely inadequate, for the reason that such remedy at law would necessitate a multiplicity of suits, and for the further reason that before he can get a trial at law the said respondents will probably have caused some serious accident or injury to your orator, for which the law cannot compensate." The prayer of the bill was that the respondents be enjoined from further trespassing upon said premises. Upon the filing of the bill a preliminary writ of injunction was issued. In the answer to the bill it was averred that William Deegan was the owner of the property described in the bill of complaint, and had leased the same to the complainant; and the other defendants, Smith & McAdory, were contractors who were under contract with the defendant Deegan to make improvements upon a lot joining the one in question, which was also owned by said Deegan. The defendants then denied, in their answer, that the complainant was in possession of all of said property described in said bill, in the manner therein alleged, and averred that on August 2, 1899, the defendant Deegan and the complainant entered into a contract of lease whereby the said Deegan leased to the complainant for one year from November 1, 1899, to November 1, 1900, the brick building occupied by the complainant, which said building is situated on the other part of the lot described in the complaint, but does not cover all of said lot; that in the rear of said brick building leased by the complainant there was a small yard, and when the lease was made to the complainant the defendant Deegan gave him the privilege of using said yard, but did not give the lease to the same, nor give him the exclusive use of said yard. It was then averred in the bill that Deegan was making improvements upon the lot which abutted the yard referred to, and that in the course of improving said property it had become necessary to tear down the brick wall and inclose said yard, and to rebuild the wall high enough to hold rafters and timbers for a new building that was being erected; that before doing this defendant Deegan went to the complainant and obtained his consent for such improvement; and that it was in the progress of this improvement that the defendants were engaged when they were stopped by the injunction issued in the case. The defendants then denied that they were filling the complainant's yard with broken bricks at any time, or in such manner as to render it dangerous for complainant to occupy said premises leased to him. They further denied that they had broken or so damaged the water-closet as to render the same a menace to health on account of the sanitary condition thereof. They alleged that, if said closet was broken, it was not by them or any of their employés. Defendants denied that they were nailing to the walls and roof of said building occupied by complainant any braces or supports which affected in any way the premises occupied by the complainant, and they further denied that they were trespassing upon the building leased by the complainant, in any way. Upon the denials of the answer the defendants moved the court to dissolve the injunction. There were affidavits introduced on the part of the complainant to sustain the averments of the bill, and on the part of the defendants there were several affidavits introduced tending to show that the averments of the answer were untrue. The other facts of the case are sufficiently stated in the opinion. On the submission of the cause, on motion to dissolve the injunction and to dismiss the bill for the want of equity, the court rendered a decree overruling each of said motions. From this decree the defendants appeal, and assign the rendition thereof as error.

L. H. & E. W. Faith, for appellants.

TYSON J.

This bill was filed to enjoin the continuance of certain alleged trespasses. It appears that the complainant has a mere chattel interest in the lands. His possession of the premises was for a term which expired on the 1st day of November 1900, and the alleged trespasses appear to have been committed during the month of September preceding, by his landlord and his employés, the other defendants. Only 37 days...