Knickerbocker Ice Company v. Surprise
Decision Date | 02 February 1912 |
Docket Number | 7,482 |
Citation | 97 N.E. 357,53 Ind.App. 286 |
Parties | KNICKERBOCKER ICE COMPANY v. SURPRISE |
Court | Indiana Appellate Court |
Rehearing denied June 29, 1912, Reported at: 53 Ind.App. 286 at 298. Transfer denied April 22, 1913.
From Lake Circuit Court; W. C. McMahan, Judge.
Action by William surprise against the Knickerbocker Ice Company and others. From a judgment for plaintiff, the defendant company appeals.
Affirmed.
Doran & Conboy, Elias D. Salsbury and Benjamin O'Hara, for appellant.
Otto J Bruce and August A. Bremer, for appellee.
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.
The complaint first alleges that the plaintiff is the owner in fee of certain described real estate in Lake County, Indiana. The other averments of the complaint follow:
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 (1890), 47 Ohio St. 336, 24 N.E. 686, 8 L.R.A. 578, 21 Am. St. 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 the financial condition of Andrews doubtful; but aside from this, and were they both solvent and fully able to respond to any damages 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 therefore 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 Joyce, Injunctions § 10. See, also, 1 High, Injunctions § 697; 1 Pomeroy, Eq. Jurisp. (2d ed.) § 243; Tantlinger v. Sullivan (1890), 80 Iowa 218, 45 N.W. 765. 1 High, Injunctions at § 702 says: "* * * 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 (1891), 32 Neb. 94, 48 N.W. 882; and Poirier v. Fetter (1878), 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. See, also, 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 (1910), 45 Ind.App. 698, 91 N.E. 621; Brenner v. Heiler (1910), 46 Ind.App. 335, 91 N.E. 744; Owens v. Lewis (1874), 46 Ind. 488, 15 Am. Rep. 295; Miller v. Burket (1892), 132 Ind. 469, 32 N.E. 309; Bonnell v. Allen (1876), 53 Ind. 130; Pence v. Garrison (1884), 93 Ind. 345; Field v. Holzman (1884), 93 Ind. 205; Tantlinger v. Sullivan, supra; Lembeck v. Nye, supra.
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