Norton v. Elwert

• Decision Date: 07 October 1895
• Citation: 29 Or. 583,41 P. 926
• Parties: NORTON v. ELWERT.
• Court: Oregon Supreme Court

41 P. 926

29 Or. 583

NORTON v. ELWERT.

Supreme Court of Oregon

October 7, 1895

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Suit by Sarah Norton against J.B. Elwert. Decree for plaintiff. Defendant appeals. Affirmed.

This is a suit for a mandatory injunction, to compel the removal of a wall, and to recover damages resulting from its erection involving the location and establishment of a disputed boundary line between the lands of the plaintiff and the defendant. The facts are that the plaintiff is the owner of the north 45 feet, and the defendant of the south 5 feet, of lot 3, and all of lot 4, in block 218, situated at the northwest corner of Yamhill and West Park streets, in the city of Portland; that in 1891 the plaintiff built a two-story frame house, which cost about $12,000, upon her part of the lot, and in the following year the defendant commenced to repair and construct three buildings upon her adjoining land, and upon the plaintiff's failure, after notice, to remove from her building certain projections which it was claimed extended over the boundary line, removed the water table, window sills and caps, cornice, rafters sheathing, and shingles from a large part of the south side thereof, with a view to the erection of a brick wall against it, along the supposed boundary line. The suit was commenced October 10, 1892, by filing a complaint, wherein the plaintiff alleges that the defendant, on the preceding day commenced the erection of a house, partly on her own ground but that the north wall thereof was, for a distance of about 50 feet, being constructed from 1 1/2 to 2 inches upon plaintiff's premises; that the wall did not then extend the entire length of her house, but that the defendant threatened to so extend it as to exclude the light and to remove the projections of her building which then remained, and that, if the threat should be executed, she would sustain irreparable injury; that she has no adequate remedy at law; and prays for a temporary restraining order, which she asks might at the hearing be made mandatory, requiring the defendant to remove the wall from her premises and for $5,000 damages. The defendant having denied the material allegations of the complaint, the cause was referred and the evidence taken, from which the referee found that the wall at the northeast corner of defendant's building extends upon the plaintiff's premises, at and below the surface of the ground, one-half inch, and, at a point 6 feet above the surface, 1 1/2 inches, which extension continues upward to the top and westward about 60 feet to a point from which it begins to recede, and at the northwest corner is one-half inch south of the boundary; and, as conclusions of law, that plaintiff was entitled to a decree for $1,750 and a mandatory injunction, compelling the defendant to remove the wall; and the court, having approved these findings, rendered a decree in accordance therewith, from which the defendant appeals.

E.B. Watson, for appellant.

J.W. Whalley, for respondent.

MOORE J. (after stating the facts).

It is contended that, the defendant having erected the wall upon and being in possession of the locus in quo, a court of equity should not grant a mandatory injunction to compel the removal of the structure until the legal title to the premises occupied by it shall have been determined in an action at law, and that to grant the relief prayed for would be to substitute a suit in equity for an action in ejectment, thus depriving her of the constitutional right to a trial by jury. It is a familiar principle, which has existed since the origin of a court of chancery, that equity will not interpose its jurisdiction to try an issue where the party has a plain, adequate, and complete remedy at law; and, since the legal title to and possession of land can ordinarily be tried and recovered in an action at law, a court of equity will not, in the absence of fraud, mistake, or some other intervening equity, try the legal title to, or, unless as an auxiliary relief, restore the possession of, land, except in cases of disputed boundaries, partition, and the assignment of dower, and, in these, only where the issue and relief are incidents to the principal objects of the suit. Pom.Eq.Jur. § 177. While courts of equity originally declined to restrain waste or trespass, they now frequently interpose, and by temporary injunction prevent an injury to land, even where the right thereto is in dispute and the defendant is in possession, claiming by an adverse title, if the threatened injury will be productive of irreparable damage (2 Wat.Tresp. § 1128; Bracken v. Preston, 1 Pin. 584; Long v. Kasebeer, 28 Kan. 226; Webster v. Cooke, 23 Kan. 637); and an injury is irreparable if of such a nature that it cannot be adequately compensated in damages, or cannot be measured by any certain pecuniary standard ( Wilson v. City of Mineral Point, 39 Wis. 160). The right of a court of equity, in cases of irreparable injury, to interpose, and by temporary injunction preserve the status quo, and restrain a trespass upon the land the right to which is in dispute until the title can be determined in an action at law, is no longer seriously controverted ( Clayton v. Shoemaker, 67 Md. 216, 9 A. 635; Wilson v. Rockwell, 29 F. 674; Erhardt v. Boaro, 113 U.S. 537, 5 Sup.Ct. 565; 1 Spel.Extr.Rel. § 367); and the refusal of a court to award a preliminary injunction in such cases would, in effect, be a denial of justice (Wilson v. City of Mineral Point, supra).

The right to grant a preliminary injunction under such circumstances being conceded, the rule, nevertheless, seems universal that where the legal title to the locus in quo is put in issue, and the jurisdiction of a court of equity is challenged, an injunction to restrain a trespass, though temporarily granted, will not be made perpetual until the legal title to the disputed premises has been tried in an action at law. 1 High, Inj. § 701; 10 Am. & Eng.Enc.Law, 799. So that, before an injunction will be made perpetual, the following conditions must coexist: First, the plaintiff's title must be admitted or established at law; and, second, the injury complained of must be irreparable in its nature, or productive of a multiplicity of actions against different parties asserting the same right. 1 High, Inj. § 701; 2 Beach, Inj. § 1142; 1 Spel.Extr.Rel. § 368; Hatcher v. Hampton, 7 Ga. 50; Thorn v. Sweeney, 12 Nev. 251; Poyer v. Village of Des Plaines, 123 Ill. 111, 13 N.E. 819.

In Echelkamp v. Schrader, 45 Mo. 505, the plaintiff and defendant were owners of adjoining tracts of land, upon which was erected a double house, containing a partition, which was supposed to be on the line between their several estates, but, by a careful survey, it was discovered that the boundary extended across the plaintiff's section of the house about three feet from the partition. The defendant, desiring to remove the portion of the house upon his land, commenced to saw through the plaintiff's part on the line of the new survey, to prevent which he was enjoined at the suit of the plaintiff, who had for about 17 years occupied to the partition the section so claimed by him. The preliminary injunction which had been issued having been made perpetual, the defendant appealed, and the court, in reversing the decree, said: "It is usual in cases like this, where the title comes in controversy, to grant a temporary injunction to await the event of an action at law to be prosecuted by the plaintiff. But here the plaintiff is in actual possession, and has been for many years, and is therefore not in a position, nor has he any occasion, to sue. The defendant is the proper party to bring an action and test the rights of the respective parties at law. If he neglects to do this in a reasonable time, he will have no just grounds of complaint if the injunction is made perpetual against him in consequence of his own negligence." In the case last cited, there was no conflict in relation to the boundary, but, the plaintiff having been in possession for about 17 years of that part of the house which extended to the partition, the legal title thereto was in doubt, and hence it was proper to deny the perpetual injunction until the legal right could be tried in an action at law.

In the case of Haines v. Hall, 17 Or. 165, 20 P. 831, the defendant attempted to drive logs in a stream flowing through the plaintiff's premises, but, the quantity of water therein being insufficient for that purpose, the logs cut away the plaintiff's land, thereby producing irreparable injury, to prevent a recurrence of which the plaintiff commenced a suit to restrain the trespass and for damages. The issue made by the pleadings was the navigability of the stream; and it appearing that the plaintiff, in an action against another party who asserted the same right, had recovered damages resulting from a similar trespass ( Haines v. Welch, 14 Or. 319, 12 P. 502), it was held by the majority of the court that equity would grant the relief prayed for; but Strahan, J., in a dissenting opinion, held that in the case of Haines v. Welch, supra, the navigability of the stream in question was not adjudicated, and, since that was not the issue in the case then pending, equity should not award a perpetual injunction until the legal right had been tried in an action at law.

The case of Mendenhall v. Water-Power Co. (Or.) 39 P 399, was a suit to enjoin the defendant from trespassing upon the plaintiff's premises, and involved a question of the width and boundaries of its right of way across the plaintiff's land. The lower court, after the evidence was taken, subject to objection, having denied a motion for leave to amend the answer so as to allege an adverse...