McHan v. McMurry

• Decision Date: 09 May 1911
• Citation: 55 So. 793,173 Ala. 182
• Parties: MCHAN v. MCMURRY.
• Court: Alabama Supreme Court

55 So. 793

173 Ala. 182

MCHAN v. MCMURRY.

Supreme Court of Alabama

May 9, 1911

Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.

Bill by H. R. McMurry against James McHan to restrain a nuisance. From a decree for complainant, respondent appeals. Reversed rendered, and remanded.

J. B Brown, for appellant.

F. E St. John, for appellee.

McCLELLAN J.

This bill is by a lower riparian proprietor against the adjacent upper proprietor, and seeks his restraint from the erection of a proposed dam, on his own lands, across a stream coursing through the farms of each. In the third paragraph of the bill must its equity be found, if at all. That paragraph reads:

"That defendant erected a dam across said Thacker's creek and dammed up the creek, and on several occasions said dam broke or washed away, and caused the water to come down said creek with such force and in such volume as that it overflowed complainant's farm, which is and was in cultivation, and washed away the dirt and soil, and washed great gulches or ditches in complainant's field, and damaged complainant's farm in the sum of $1,000; and said defendant is now erecting another dam across said creek above complainant's farm, against the objections of complainant, and is building said dam in such way that it will not hold the water which flows in said creek during the heavy rains, and said dam will break or be washed away, and complainant's farm will again be overflowed with water, and the dirt and soil will be washed away from said farm, and great gulches or ditches will be washed in said farm, until it will be rendered useless for cultivation, unless the defendant is restrained by this court from erecting said dam."

Upon hearing (Code, § 4528), a temporary writ of injunction was granted, as prayed. From this order the appeal is prosecuted. Code, § 4531.

The hearing provided by Code, § 4528, is new to our law. So this preliminary inquiry is mooted by the solicitors: Whether, under the new procedure for the issuance of injunctions, all amendable defects will be treated as perfected, consistent with the rule applicable where dissolution of an injunction, for want of equity in the bill, was the matter invoking the court's ruling. Chambers v. Ala. Iron Co., 67 Ala. 353; E. & W. R. R. Co. v. E. T. V. & G. R. R. Co., 75 Ala. 275; L. & N. R. R. Co. v. Bessemer, 108 Ala. 238, 18 So. 880.

One of the two sole grounds for dissolution is the want of equity in the bill. As will be seen from our decisions, the two first cited being among them, it was well conceived that motion to dismiss for want of equity was not, and could not be allowed to become, a substitute for a demurrer. Hence it was held, where the objection rested on the assertion of a want of equity in the bill otherwise than by demurrer, that amendable defects should be taken as cured; the implication being, of course, that objections in that form confessed the bill as so perfected. To what extent the assumed amendment of the bill, so assailed, should go, was again determined, following Seals v. Robinson, 75 Ala. 368, in Blackburn v. Fitzgerald, 130 Ala. 584, 30 So. 568. No such condition for the assumption of amendments made obtains where the issuance of an injunction, upon application of the complainant, is the question for determination. On dissolution, vel non, the respondent is, of course, the movant. On the hearing of the application stated, the complainant is the actor. He can be aided by no rule of favor, like that of assumed amendment, to his initial pleading.

The Nebraska court, in Bishop v. Huff, 81 Neb. 729, 116 N.W. 665, dealing with injunctive process, said of complainants: "The court cannot aid their allegations by construction; but, unless their right to the writ is made clearly to appear, it must be denied." A fortiori, a complainant should be denied assistance by assumed amendment of his bill. His bill must be determined, as to its equity, upon the averments contained in it, unaided by construction and unamplified by assumed amendment. This requirement consists with the view, firmly established in this court, that this extraordinary power should be cautiously and sparingly exercised, and that, in cases of private nuisance, generally, it will not be used, unless "there is a strong and mischievous case of pressing necessity." Rouse v. Martin, 75 Ala. 510, 51 Am. Rep. 463. "Where the injury complained of is not a nuisance per se, but may become so by reason of circumstances--being uncertain, indefinite or contingent--equity, as we have said, will not interfere. * * * It is a rule of universal recognition that in doubtful cases an injunction will always be denied, or dissolved on motion when granted ad interim. A very strong case must therefore be made by the bill, and if there be a reasonable doubt as to the probable effect of an alleged nuisance, either on the proof, affidavits, or on the construction of the facts stated in the bill, there will be no interference until the matter is tested by experiment in the actual use of the property." Rouse et al. v. Martin et al., supra; Amer. T. & T. Co. v. Morgan County Tel. Co., 138 Ala. 597, 604, 605, 36 So. 178, 100 Am. St. Rep. 53; 1 High on Inj. § 742, and note; Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221, 224; Lake Erie & W. R. Co. v. City of Fremont, 92 F. 721, 730, 731, 34 C. C. A. 625; 2 Joyce on Inj. § 1069, and note.

In the last-cited new and excellent work on the subject of Injunctions, it is pertinently said: "Equity will not afford relief against a merely prospective or threatened nuisance, where the injury is...