Rankin v. Charless

• Decision Date: 31 March 1854
• Citation: 19 Mo. 490
• Parties: RANKIN, Appellant, v. CHARLESS, Respondent.
• Court: Missouri Supreme Court

19 Mo. 490

RANKIN, Appellant,

v.CHARLESS, Respondent.

Supreme Court of Missouri.

March Term, 1854.

1. Under a code, a plaintiff is entitled to all the relief that he could formerly have obtained both from a court of law and equity upon the facts.

2. The mere fact that one proprietor, in building a house, inserts his joists in the wall of an adjoining proprietor, without license, will not authorize the interference of a court by injunction to remove the joists, although it is sufficient to entitle the party whose wall is thus used to recover damages. To obtain an injunction, he must show some special facts which entitle him to this extrordinary remedy.

Appeal from St. Louis Court of Common Pleas.

Civil action under the code. The plaintiff, in his petition, stated that he was the owner of a lot on the west side of Main street, in the city of St. Louis, upon which there was a four-story brick building, the south wall of which was on the south line of the lot; that the defendant was the owner of an adjoining lot on the south, upon which he erected a building, the joists of which he inserted in plaintiff's south wall, without his consent, whereby plaintiff stated that his building was greatly weakened, and exposed to greater risk of injury and destruction by fire. He prayed judgment that the joists be removed, that the holes made in his wall by the insertion of the joists be filled with brick and mortar “as strongly as it may be done,” and for damages for the use of his wall by the defendant, at the rate of $200 per annum.

The defendant answered, setting up a license.

There was a trial by jury, who found the issue for the plaintiff, and assessed his damages at $164, and the monthly value at two dollars. Upon this verdict, judgment was, on the 12th of March, entered up against the defendant for the damages and monthly value. Judgment was further entered that the ends of the joists inserted in the plaintiff's building, be removed, and the holes filled with brick and mortar, as strongly as it may be done, and that the plaintiff have execution accordingly. None of the evidence introduced at the trial is preserved in the record. A motion for a new trial was overruled on the 21st of March, the plaintiff remitting a portion of the damages. On the 29th of March, the defendant obtained leave to file a motion to set aside all that part of the judgment which related to the removal of the joists, and the filling up of the holes, which motion was afterwards sustained. The plaintiff excepted and appealed to this court.

B. B. Dayton and Barton Bates, for appellant.

1. The court below erred in granting leave to the defendant to move to set aside a part of the plaintiff's judgment, after the lapse of four days from its rendition. Act concerning Practice at Law, R. C. 1845, art. 7, p. 829. However erroneous the judgment may have been, it was not irregular, so as to give the defendant five years time within which to move to set the same aside. The new code does not prescribe the time within which the motion is to be made, but leaves it to the old statute concerning practice. New Code, art. 33, sec. 5. 2. The court erred in sustaining the defendant's motion. The portion of the judgment stricken out was necessary to restore the plaintiff to such possession and enjoyment of his property as he was entitled to. By the verdict of the jury, it was judicially ascertained that the plaintiff's wall was greatly weakened, and subjected to greater risk of injury and destruction by fire, by the unauthorized act of the defendant. It is manifest that no adequate compensation for the injury complained of can be given in damages. Even if there could be, still the plaintiff was entitled to the full possession and enjoyment of his property. Suppose Charless had built his wall upon the plaintiff's lot. Would it be said that the plaintiff would not have the right to be restored to the possession of his property, but would have to be content with the value of the ground, as long as the defendant might choose to use it? If it be said that the wall would belong to the plaintiff, yet he could not have it removed without the process of a court. This case can be sustained on the principle of an action of ejectment. But the plaintiff was entitled to the relief he asked on another principle. The thing complained of, is a continuing cause of annoyance and damage--a nuisance, within the established definition of the term, which it is within the power of the court to remove. 3 Blackstone's Comm. p. 216, 219 et seq.; 2 Strange 1167; 11 Mo. 518. The new code abolishes all distinctions between actions at law and suits in equity, and upon a statement of the facts which constitute his cause of action, the plaintiff is entitled, in the same action, to all the relief that could formerly have been given him by a court of law and equity upon those facts.

C. D. Drake, for respondent.

The portion of the judgment which was stricken out was simply an injunction to remove a private nuisance. To authorize such an injunction there must be such injury as, from its nature, is not susceptible of being adequately compensated by damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented, but by an injunction. 2 Story's Eq. 204; 16 Vesey, 338;...