Appeal from Circuit Court, Lake County; W. C. McMahon, Judge.
IBACH, P. J.
This was a suit to perpetually enjoin appellant, R. H. Adams, and Charles Nieman from entering upon appellee's real estate and from cutting ice thereon, and for damages for cutting and removing ice therefrom. The case was dismissed as to Adams and Nieman before the filing of any pleadings by defendants. Upon trial had before the court without jury, judgment was rendered for $10 damages and costs, and an injunction was granted according to the prayer of the complaint.
Three grounds of error are argued: (1) that the complaint is insufficient; (2) that the court erred in overruling appellant's motion for a change of venue; and (3) that the evidence does not show that appellee had title to the real estate where the ice was cut.
[1] The complaint first alleges that the plaintiff is the owner in fee of certain described real estate in Lake county, Ind. The other averments of the complaint follow: “That parts and portions of the said described real estate is covered by shallow water, upon which ice forms, and from which ice can be cut and removed during such weather as keeps the water frozen and congealed. That the defendant, Knickerbocker Ice Company, is now engaged in cutting and removing ice from the said water upon the real estate of the plaintiff. That during the year 1902 the said defendant, Knickerbocker Ice Company, cut and removed 10,000 tons of ice from the water on the said described real estate of the plaintiff, which ice then and there was reasonably worth the said sum of 25 cents per ton. That the said defendant company is now cutting and removing ice from the water on the said described real estate of this plaintiff, and during the month of February, 1907, the said company did cut and remove 10,000 tons of ice from the water on the said described real estate of this plaintiff. That the said defendant R. H. Adams is the superintendent of the said defendant, and is now engaged in directing the men in the employment of the said company. That the defendant Charles Nieman is the field foreman, who under the said superintendent is in the immediate charge of the men engaged in removing the said ice. That the said defendants are now cutting and removing ice from the water of the plaintiff's said real estate, and are now engaged in working upon, across, and over the plaintiff's said real estate bringing ice from other tracts of real estate to and upon the plaintiff's said real estate, and removing such ice so brought from other tracts of real estate across and over plaintiff's said real estate. And the defendants are now threatening to and will continue to cross and recross the plaintiff's said real estate and move ice across and over the plaintiff's said real estate, unless restrained and enjoined from so doing. That the defendants from time to time in years past have cut and removed ice from the water upon the plaintiff's said real estate, and have cut and removed across and over the plaintiff's said real estate ice brought from elsewhere, and the defendants are now engaged in cutting and removing from the water on the plaintiff's said real estate and in removing other ice brought from elsewhere upon, across and over the plaintiff's said real estate, and are now threatening to, and will continue to, do the acts and things aforesaid, unless enjoined and restrained from so doing. That each and all the acts of the said defendant are without right, permission, or authority of this plaintiff. That, unless the defendants are restrained and enjoined from the doing of each and all of the several acts aforesaid, a multiplicity of actions and suits will be necessary from time to time, causing a large and unusual expense of money, time and annoyance. That the said defendants employ large numbers of persons, several hundred persons, in the doing of the said acts, and that it is impossible to cause the arrest of each and all thereof from time to time as the various entries are made and threatened to be made upon the plaintiff's property. That the enforcement or attempted enforcement of the plaintiff's rights at law or in a criminal court would cause breaches of the peace, affrays, riots, and other conditions. That the plaintiff had already been damaged in the sum of $1,000, and had heretofore resulted in former lawsuits for like damages, and a multiplicity of suits will be necessary in the future, unless the defendants and each of them are restrained and enjoined from the doing of the several acts which the said defendants are doing and threatening to do. That the plaintiff has no adequate remedy at law, and will sustain irreparable damage and loss unless the said defendants are enjoined from the doing of the acts now being done and those threatened. Wherefore the said plaintiff asks judgment for the sum of $1,000, and that the defendants and each and all of them be forever and perpetually enjoined from entering upon the plaintiff's said real estate or any part or portion thereof, and from cutting and removing any ice from any part or portion of the water on said real estate, and that they be enjoined from bringing and removing ice from elsewhere upon, across, and over the plaintiff's said real estate, and that the defendants and each of them be forever enjoined from the doing of each and all of the said acts either individually or by and through the means of agents and servants, and for any and all proper other relief.”
We are first called upon to determine the sufficiency of the complaint. It is not always an easy matter to distinguish between what constitutes a mere naked trespass, for which there is a full and adequate remedy at law, and what constitutes such a degree of irreparable injury as will authorize the court to interfere and grant injunctive relief. We consider the complaint before us free from doubt. In the case of Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828, a suit to enjoin the defendants from doing certain acts upon the land covered by water belonging to the plaintiff, the court said: “The agreed statement of facts shows that the defendant Nye is insolvent, and that the financial condition of Andrews is doubtful; but aside from this, and were they both solvent and fully able to respond to any damage that might be recovered against them in actions of trespass, yet it is apparent from the whole record that such actions would not afford an adequate remedy for the violations of the rights of the plaintiff in error in the past, and those threatened in the future were, and are, during certain seasons of the year of daily, if not of hourly, occurrence under the claim of a right to do so. Besides, the injury resulting from each separate act would be trifling, and the damages recoverable therefor scarcely equal to a tithe of the expense necessary to prosecute separate actions therefor.” It has also been announced many times and by different courts and law writers that, “though property owners have a remedy at law for the intrusion upon their rights, yet, as the trespass is continuous in its nature, they can have an injunction to prevent a multiplicity of suits, and can recover the damages they have sustained as incidental to the equitable relief.” 1 High on Injunctions, § 697; 1 Joyce on Injunctions, § 10; Pomeroy's Equity Jurisprudence (2d Ed.) § 243; Tantlinger v. Sullivan, 80 Iowa, 218, 45 N. W. 765. High, in his work on Injunctions, at section 702, says: “So, when the wrongful acts continued or threatened to be continued may become the foundation of adverse rights and may occasion a multiplicity of suits to recover damages, the case presents such equitable features as to entitle complainant to the aid of an injunction.” This doctrine is well supported by Shaffer v. Stull, 32 Neb. 94, 48 N. W. 882, and Poirer v. Fetter, 20 Kan. 47. The courts have also decided “that where the acts of trespass are constantly recurring, but the injury resulting from each separate act is trifling, so that the damages recoverable for each act would be very small when compared with the expense necessary to prosecute separate actions at law therefor, relief will be granted owing to the inadequacy of the legal remedy.” Lembeck v. Nye, supra. Even if an injunction were not asked, the complaint sufficiently states a cause of action as alleging a trespass against appellee on the part of appellant, and asking damages therefor, and will withstand demurrer for that reason. The trespass alleged is a continuing one, which would on the facts stated furnish grounds for many causes of action, and we know of no adequate remedy at law open to appellee. He is not obliged to confine himself to his remedy at law and bring a new action every time this continuing trespass is repeated. The complaint states facts sufficient to obtain the relief asked. Wirrick v. Boyles, 45 Ind. App. 698, 91 N. E. 621;Brenner v. Heiler, 46 Ind. App. 335, 91 N. E. 744;Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295;Miller v. Burket, 132 Ind. 469, 32 N. E. 309:Bonnell v. Allen, 53 Ind. 131;Pence v. Garrison, 93 Ind. 345;Field v. Holzman, 93 Ind. 205;Tantlinger v. Sullivan, 80 Iowa, 218, 45 N. W. 765;Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828.
[2][3] By a rule of the ...
