Lanahan v. Gahan

• Decision Date: 18 December 1872
• Citation: 37 Md. 105
• Parties: THOMAS M. LANAHAN v. PATRICK GAHAN.
• Court: Maryland Court of Appeals

37 Md. 105

THOMAS M. LANAHAN v. PATRICK GAHAN.

Court of Appeals of Maryland

December 18, 1872

Appeal from the Circuit Court of Baltimore City.

This was an appeal from a decree dissolving the injunction, issued upon the application of the appellant, and dismissing his bill. The case is sufficiently stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BOWIE, ALVEY and ROBINSON, JJ.

John Carson, for the appellant.

Patrick McLaughlin, for the appellee.

Alvey J., delivered the opinion of the court.

The appellant seeks to restrain the appellee by injunction from the use of a division wall between their adjoining lots alleging that such wall, being the northern wall of his building, is his exclusive property, and that the use attempted to be made of it by the appellee will weaken and impair it, and, at the same time, tend to destroy its exclusive character and convert it into a party wall. The appellee, on the other hand, contends that he has a right to use the wall as contemplated by him, because the same is partly located on his ground, and is not therefore the exclusive property of the appellant; and he denies that the use he was about making of the wall, being the insertion of joists for the extension of his building, would in any manner weaken or impair it, as alleged by the appellant.

It is plain, from the very nature of the claims and pretensions of the respective parties, that the rights involved are purely legal rights, and such as should be determined by a court of law, and not by a court of equity. The proper office of a court of equity, as said by Lord Cottenham, in Harman v Jones, 1 Cr. & Phil. 301, upon applications of this kind, is not to ascertain the existence of a legal right, but solely to protect the property until that right can be determined by the jurisdiction to which it properly belongs and this protection will only be given in cases where the mischief threatened or impending is likely to be ruinous or irreparable. An injunction is never granted to restrain a mere trespass, where the injury is not destructive and irreparable, but is susceptible of perfect pecuniary compensation by action of law. Jerome v. Ross, 7 John. Ch. 315. The doctrine of courts of equity upon this subject is briefly but fully stated by the Master of the Rolls in Hilton v. Granville, 4 Beav. 130, which was an application to have the defendant restrained from so working...