Lewis v. Town of N. Kingstown

• Decision Date: 29 October 1887
• Citation: 11 A. 173,16 R.I. 15
• Parties: LEWIS and others v. TOWN OF NORTH KINGSTOWN and others.
• Court: Rhode Island Supreme Court

11 A. 173

16 R.I. 15

LEWIS and others

v. TOWN OF NORTH KINGSTOWN and others.

Supreme Court of Rhode Island.

October 29, 1887.

Bill in equity for an injunction. On motion to dismiss the bill.

Samuel W. K. Allen, for complainants. William C. Baker, for respondents.

DURFEE, C. J. This bill sets out that the complainants are owners in possession of a lot of land situate on Washington street, in the village of "Wickford, in the town of North Kingstown, in highway district No. 37 of said town, on which lot there is a building belonging to them; that the defendant John H. Weeden, the surveyor of the highways of said district, acting under orders of the town council of said town, the members whereof are likewise made defendants, has entered on said lot, and is engaged in raising said building, and taking a way the foundations, for the purpose of removing said building and foundations, and grading said lot, thereby throwing the estate open to the public, and obliterating its boundaries, to the irreparable injury of the complainants. The bill prays that the defendants may be enjoined from carrying out their purposes, and from further interfering in any way with the estate, and for general relief. The bill was filed February 28, 1885. The defendants, by their answer, filed May 27, 1885, admit that they are or were doing as charged, but deny that the lot is part and parcel of the estate of the complainants, and allege that it is and ever has been, from a time whereof the memory of man runneth not to the contrary, part and parcel of a public highway, and that the building had stood thereon by sufferance of the town. The defendants also by supplemental answer, filed September 28, 1886, allege that their purposes have been fully carried out by removing the building and foundations and grading the lot, and set up that the complainants ought not to maintain their bill, because their remedy is complete at law. To both answers the complainants have filed general replications. In this state of the pleadings, the defendants move that the bill be dismissed, because the complainants have an adequate remedy at law, and, in support of their motion, contend — First, that the bill does not state a case for equitable relief; and, second, if it does, that the case stated has ceased to exist by reason of the removal of the building and foundations, and the grading of the lot.

It is true that, in case of threatened trespasses, courts of equity generally leave the suffering party to his remedy at law; but when such party is in possession, and the trespass, if permitted, would result in irreparable injury, or tend to the destruction of the estate, the courts interpose by injunction. In the case at bar, the bill averred that the defendants were purposing, when the...