Rhoades v. McNamara

• Decision Date: 16 February 1904
• Court: Michigan Supreme Court
• Parties: RHOADES v. McNAMARA.

98 N.W. 392

135 Mich. 644

RHOADES v. McNAMARA.

Supreme Court of Michigan

February 16, 1904

Appeal from Circuit Court, Van Buren County, in Chancery; John R Carr, Judge.

Bill by Lewis Rhoades against Ed. McNamara. Decree for plaintiff, and defendant appeals. Affirmed.

Thos. J. Cavanaugh, for appellant.

W. J Barnard, for appellee.

CARPENTER J.

Complainant gave to one Aaron Tallman a license to construct a roadway across his land, and to draw over the same certain timber belonging to him. After this timber was drawn, defendant, who had been in Tallman's employ, contrary to the objections of complainant, drew over said roadway timber belonging to himself, and persisted in so using said roadway notwithstanding the objections of complainant. This bill was filed for the purpose of procuring an injunction restraining said use, and compensation for the damage. Complainant obtained a decree.

Defendant insists that this decree should be reversed, on the ground that complainant, by recovering damages in a suit at law, has an adequate remedy. Defendant persisted in using this road, contrary to complainant's will, under an unfounded claim of right. Under these circumstances, must the complainant quietly submit to this invasion of his rights, and content himself with suing for damages? Clearly not. He has a right to have this continuing trespass stopped by an injunction. Wilmarth v. Woodcock, 58 Mich. 482, 25 N.W. 475; Id., 66 Mich. 331, 33 N.W. 400; Campbell v. Kent Circuit Judge, 111 Mich. 575, 70 N.W. 141; Wolf Brick Co. v. Lonyo (Mich.) 93 N.W. 251.

It is also urged that, at the time this suit was commenced, defendant had practically completed the drawing of this timber, and therefore there was no need of the injunction. We think it is to be inferred from the record that, when complainant commenced this suit, he supposed that defendant intended to persist in wrongfully invading his rights. Defendant himself testifies, 'We hauled out lumber the same night that he [complainant] said he was going to get the injunction.' Complainant should not be deprived of his rightful remedy because defendant moved the timber more expeditiously than he expected.

The court below awarded $16 as compensation for complainant's damages. It is urged that to permit this to stand is to deprive defendant of his constitutional right of a jury trial. This position is not sound. From the foregoing consideration, it will...