Hart v. Hildebrandt

• Decision Date: 03 February 1903
• Citation: 30 Ind.App. 415,66 N.E. 173
• Parties: HART v. HILDEBRANDT et al.
• Court: Indiana Appellate Court

30 Ind.App. 415

66 N.E. 173

HART

v.HILDEBRANDT et al.

Appellate Court of Indiana, Division No. 1.

Feb. 3, 1903.

Appeal from circuit court, Cass county; Joseph M. Robb, Judge.

Suit by Catherine Hildebrandt and others against Samuel C. Hart. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Nelson & Myers, for appellant. John S. Lairy, for appellees.

ROBINSON, J.

Suit by appellees to enjoin the use by appellant of a private alley. The complaint is in two paragraphs, to each of which a demurrer was overruled, which ruling is first questioned. There was a general finding by the court in appellees' favor, and it does not appear upon which paragraph of the complaint the judgment is based.

The second paragraph of the complaint avers that appellees are the owners in fee simple and in the peaceable possession of a certain described lot in the city of Logansport; that running over and across the east 10 feet of the lot is a private alley, extending southward to a public alley; that the same “is a private alley belonging to the plaintiffs,” and appurtenant and appendant to two other lots lying south of appellees' lot; that no person or persons other than the occupants of appellees' lot and the lots lying south thereof have any interest in or right to use such private alley for any purpose; that the real estate upon which this private alley is located, on the east part of appellees' lot, is the absolute property of appellees, subject only to the right of the occupants of the two lots lying south to use the same as a private alley; that appellant is the owner of the lot contiguous to the east 20 feet on the north side of appellees' lot, the same abutting and adjoining the north end of the private alley belonging to appellees; that the alley is not appurtenant to appellant's lot, and that appellant has no right, title, or interest whatever in such alley; that the agents and lessees of appellant, with his knowledge, and under his authority and direction, have continuously for the last eight years entered upon and used this private alley, claiming the right to use the same as appurtenant to the premises owned by appellant; that during such time they have entered upon such private alley, “and used it under a claim of right, which use is adverse to the right of these plaintiffs, and of a character that, if continued for twenty years, will ripen into an easement”; that appellees have notified appellant not to enter upon the alley, but, disregarding the notice, he “continued to enter upon and use said alley, and is now using and threatening to continue to use the same, and is claiming the right to so enter upon and use said alley, and will, unless restrained by this court, acquire an easement in said alley, to the permanent and irreparable injury of these plaintiffs; and that said injury cannot be fully compensated in damages,” by reason whereof they have sustained damages. Prayer that appellant be enjoined from entering upon and using the alley.

In cases where injunctive relief is prayed, the plaintiff must aver and prove that he will suffer great injury if the relief by injunction is not granted. Xenia, etc., Co. v. Macy, 147 Ind. 568, 47 N. E. 147; Burns' Rev. St. 1901, § 1162. And it is held that injunction will lie to restrain the commission of a trespass upon real property. Clark v. Jeffersonville, etc., R. Co., 44 Ind. 248. And a wrongful entry on land under a claim of right, for the purpose of making a public way or bridge, may be prevented by injunction. Kyle v. The Board, etc., 94 Ind. 115. But injunction in such cases will not lie unless great injury would result, and the complaining party has no adequate remedy at law. Bolster v. Catterlin, 10 Ind. 117. To authorize a court of equity to interpose by injunction, there must be something more than merely a violation of the plaintiff's rights. It must appear that this violation is of such a nature as is or will be attended with substantial and serious damage. Bigelow v. Hartford Bridge Co., 14 Conn. 565, 36 Am. Dec. 502. The rule is thus stated in Watson v. Sutherland, 5 Wall. 74, 18 L. Ed. 580: “It is contended that the injunction should have been refused because there was a complete remedy at law. If the remedy at law is sufficient, equity cannot give relief, but it is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity. *** To prevent a conveyance like this, a court of equity steps in, arrests the proceedings in limine, brings the parties before it, hears their allegations and proofs, and decrees either that the proceedings shall be unrestrained, or else perpetually enjoined. The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to a particular case must depend altogether upon the character of the case, as disclosed in the pleadings.” This principle has been approved in Thatcher v. Humble, 67 Ind. 444, enjoining the cutting of growing trees; in Elson v. O'Dowd, 40 Ind. 300, enjoining levy on property of replevin bail where there was sufficient property of the debtor; in English v. Smock, 34...