Fisher v. Carey

• Decision Date: 23 April 1918
• Docket Number: No. 9516.,9516.
• Citation: 119 N.E. 376,67 Ind.App. 438
• Parties: FISHER v. CAREY et al.
• Court: Indiana Appellate Court

67 Ind.App. 438

119 N.E. 376

FISHER

v.CAREY et al.

No. 9516.

Appellate Court of Indiana, Division No. 1.

April 23, 1918.

Appeal from Circuit Court, Howard County; Wm. C. Purdum, Judge.

Action by William W. Carey and others against Richard Fisher. Judgment for plaintiffs, and defendant appeals. Affirmed.

Blacklidge, Wolf & Barnes, of Kokomo, for appellant. Joseph C. Herron, of Kokomo, for appellees.

BATMAN, P. J.

This is an action brought by appellees against appellant to enjoin him from using a certain telephone line, and to recover damages for trespass. The complaint alleges, among other things, that appellees are the owners of a certain telephone line and attachments, which they have been using in connection with their farm residence, as a matter of convenience and enjoyment; that on the - day of October, 1914, before the bringing of this action, appellant, without right or license, attached a certain wire to their said telephone line for the purpose of using a telephone in his residence over their said line; that such attachment rendered their said telephone worthless, and deprived them of the proper use and enjoyment of the same in their residence, in this, that such attachment produced a constant ringing of their said telephone so that it could not be used by them; that as soon as they learned that appellant had attached his telephone wire to their said telephone line, they cut appellant's said wire from the same, and notified him that he should not further trespass on them in such manner; that appellant then notified them that he intended to use, and would use, their telephone line for his use as a telephone connection, whether they consented to such use or not; that thereafter, on the 9th day of October, 1914, appellant maliciously and without right again attached his said wire to their said line for telephone purposes; that on account of said attachment they had been compelled to forego the use of their said telephone, in their residence, and have lost the use and enjoyment thereof, to their damage in the sum of $100. Appellees further aver that appellant is threatening to use their said telephone line without right; that to such end he has attached his telephone wire to their said line, as alleged above, and is threatening to use the same continuously for telephone purposes without regard to their rights and enjoyment; that such threatened use is wholly without right or license, and is made purely from a spirit of mischief and malice, and in disregard of their repeated protests against such use of their said property; that their damages for the continued use of their said telephone line by appellant, in the form and manner alleged, are irreparable on account of the inability to properly measure the same, and on account of the multiplicity of suits. Prayer for injunctive relief and damages. To this complaint appellant filed a demurrer for want of facts, which was overruled. The issues were then closed by a general denial. Appellant moved the court to submit the cause to a jury for trial. This motion was overruled, and the cause was tried by the court without the intervention of a jury, resulting in a judgment against appellant for $5 and costs, and perpetually enjoining him from attaching any telephone wire to appellees' telephone line. Appellant's motion for a new trial was overruled, and he has assigned, as the errors on which he relies for reversal, that the court erred in overruling his demurrer to the complaint, and in overruling his motion for a new trial.

Appellant, in support of his first assigned error, contends that the complaint shows that the act which appellees seek to enjoin constitutes but a single trespass, which had been committed before this suit was commenced; that it does not show that the alleged threatened trespass will cause irreparable damage, or that full and adequate compensation cannot be had in an action at law, or that there will be a multiplicity of suits if injunctve relief is not granted, and that by reason of such facts the court erred in overruling his demurrer thereto. In considering this contention the following well-established rules should be borne in mind:

[1] Although a party may have a legal remedy, injunctive relief may be granted, if such legal remedy is not as practicable, efficient, and adequate as that afforded by equity. Cincinnati, etc., R. Co. v. Wall (1911) 48 Ind. App. 605, 96 N. E. 389;Shedd v. American, etc., Co. (1915) 60 Ind. App. 146, 108 N. E. 610.

[2] Whether a complaining party has a legal remedy which will afford complete justice must be determined under all the circumstances of the case, and in view of the conduct of the parties. Drew v. Town of Geneva (1898) 150 Ind. 662, 50 N. E. 871, 42 L. R. A. 814;Hatfield v. Mahoney (1906) 39 Ind. App. 499, 79 N. E. 408, 1086.

[3] Where there is a legal remedy, equity will frequently grant injunctive relief to prevent a multiplicity of suits. Knickerbocker Ice Co. v. Surprise (1912) 53 Ind. App. 286, 97 N. E. 357, 99 N. E. 58;Royer v. State (1916) 112 N. E. 122. A threatened disturbance to an owner's right of possession has been held to authorize injunctive relief. Miller v. Burket (1892) 132 Ind. 469, 32 N. E. 309;Brenner v. Heiler (1910) 46 Ind. App. 335, 91 N. E. 744.

[4] Viewing the complaint in the light of these rules, we are led to conclude that it is sufficient to authorize injunctive relief. It alleges in effect, that appellees are the owners of the telephone line; that appellant had no right or license to use the same; that he refused to desist in its use on their demand; that they then cut said line, and thereupon appellant reconnected the same; that he is threatening to use the same continuously without right; and that such use had deprived, and will continue to deprive, appellees of the use and enjoyment of their said telephone line. It thus appears that the acts of which complaint are made do not consist of a single isolated trespass, but a trespass continuous in its nature, which would furnish grounds for many actions at law. These allegations bring appellees well within the settled rule, stated by Pomeroy in his work on Equity Jurisprudence, as follows:

“If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the grounds of avoiding a repetition of similar actions.”

This rule was quoted with approval in the case of Wirrick v. Boyles (1909) 45 Ind. App. 698, 91 N. E. 621.

[5] It is further contended by appellant that the complaint cannot be sustained on the grounds that the threatened injury will be irreparable, or that a multiplicity of suits will result, because there are no sufficient averment of facts in that regard. An inspection of the complaint shows that, when fairly construed, it at least contains a statement of conclusions in the particulars mentioned.This is sufficient in the absence of a motion to require a statement of facts necessary to sustain the same, under section 343a, Burns 1914. Schlosser v. Nicholson (1915) 184 Ind. 283, 114 N. E. 13;Miller v. Gates (1916) 112 N. E. 538. We therefore conclude there was no error in overruling the demurrer to the complaint.

[6] Appellant assigned as one of its reasons for a new trial...