Skrainka v. Oertel

• Decision Date: 18 December 1883
• Parties: WILLIAM SKRAINKA ET AL., Appellants, v. AUGUSTUS OERTEL ET AL., Respondents.
• Court: Missouri Court of Appeals

14 Mo.App. 474

WILLIAM SKRAINKA ET AL., Appellants,

v.AUGUSTUS OERTEL ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Dec. 18, 1883.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

R. E. ROMBAUER, for the appellants: Injunction will lie to restrain an interference with a right of way.-- London M. W. R. R. v. Lancashire & Y. R. R. Co., 4 Eq. 178; Goodson v. Richardson, 9 Ch. 221; Allen v. Martin, 20 Eq. 465; Ardley v. Guardians of St. Pancras, 39 L. I. 871. The remedy must be sought while the work is unfinished, because when it has been once completed the party must resort to an action of damages.-- Fanors v. Van Littart, 1 Ra. Ca. 602; Drere v. Guest, 1 M. & C. 516; Moreland v. Richardson, 22 Beav. 604; Camochan v. Norwich, S. R. Co., 26 Beav. 171; Doran v. Carroll, 11 Ired. Ch. 379. The only counsel fees recoverable in any event are those necessarily incurred to secure a dissolution of the injunction already granted.-- Bostmantel v. Stewart, 55 Cal. 115; Steele v. Thatcher, 56 Ill. 257; Hovey v. Rubber Tip Co., 12 Abb. P (N. S.) 360. Time lost in consultation with counsel are not proximate damages.-- Center v. Hoag, 52 Vt. 401; Lange v. Wagner, 52 Md. 310; Campbell v. Metcalf, 1 Mont. Ty. 379; Brown v. Jones, 5 Nev. 374. Nor can any damages be recovered resulting from the fact that defendants were enjoined from committing a trespass-- Jenkins et al. v. Parkhill, 25 Ind. 473, 479.

T. J. CORNELIUS, for the respondents: “An injunction should only be granted when the rights sought to be protected are clear, or at least free from reasonable doubt.”--Willard's Eq. Jur. (Potter's ed.) 342; Hill. on Inj. (3d ed.) 19; Washb. on Ease. (3d ed.) 700. “He who seeks the interference of a court of equity must not come with unclean hands.”-- Casseday v. Metcalf, 1 Mo. App. 593. An injunction is not issued by a court of equity as a matter of right, but as a matter of grace. And “no injunction will be granted when it will operate oppressively, inequitably, or contrary to the real justice of the case.”--Hill on Inj. (3d ed.) 33; 2 Story's Eq. Jur. (11th ed.), sect. 959, p. 169. An adverse user of the grounds subject to the easement for the period of limitation destroys the easement--Washb. on Ease. (3d. ed.) 672. One can not claim a right, the enjoyment of which he has rendered impossible by his own act.-- Taylor v. Hampton, 4 McCord, 96.

BAKEWELL, J., delivered the opinion of the court

This is an application for an injunction. The plaintiffs allege that they own a lot in city block 237, bounded west by Commercial Street; that Commercial Street runs east and west through the block, and is not a public way, but a private easement essential to the convenient use of plaintiff's property; that defendants, from April, 1882, to the filing of the bill on the 9th of May, 1882, have quarried into Commercial Street south of and adjoining plaintiffs' property; that this is an irreparable injury to plaintiffs, and endangers and destroys their easement, etc.

The defendants file separate answers. They deny that a private way ever existed over Commercial Street, in block 237, or that their acts interfered with plaintiffs' rights. They aver that Commercial Street in said block has been abandoned as a way of street for twenty years, during which period plaintiffs and the property holders in the block quarried in Commercial Street until it is an almost exhausted quarry. They say that, by reason of these acts of plaintiffs and others, and the representation of plaintiffs, defendant Heman was induced to believe that all rights of way over Commercial Street were abandoned, and, so believing, he bought land in block 237, and expended large sums in preparing to quarry on his said land and on Commercial Street. Oertel alleges that, in 1877, he owned a strip of ground lying between the lot of plaintiff and Labeaume Street, and became a partner of plaintiff as quarrymen; and that plaintiffs and he then agreed that Commercial Street had been abandoned more than ten years, and they quarried out all the rock on Commercial Street from Labeaume Street south to Heman's lot, so that plaintiffs, when they subsequently bought their lot described in the petition, knew that there was no way over Commercial Street. Heman further states that he had a license from all owners in the block, except plaintiff, to quarry out Commercial Street, the value of which, owing to his investments in quarry property made with knowledge of plaintiffs, is $10,000. He also alleges that the former owners of the block, by their recorded partition, deed, and plot, laid out Commercial Street through the block, and that the property so marked as a street has never been assessed for taxes. A temporary injunction was granted, which was dissolved on motion when the cause was heard on its merits. The witnesses agree as to the material facts, which are as follows:--

Block 237 was owned in 1857 by Bogy, Page, and Benoist, who then made partition by deed and plat duly recorded. The plat in the partition is set out below, in order to the better understanding of this statement.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

Labeaume Street is not used as a street, but is occupied as private property. Bogy and Main Streets are macadamized streets. Front street is occupied by tracks of the K. C., N. & W. railroad and of the St. Louis Transfer Company, from the eastern line of the block to the river. The property north of lot 7, including that marked as Labeaume Street, is in possession of plaintiff. Lot 8 is owned and used by plaintiffs, and they have a lease of the land marked Labeaume Street. Over lot 8 and the property marked Labeaume Street they have, by virtue of their present possession under lease, a way to Main Street. For the purpose of showing that the property marked Front Street is private ground plaintiff introduced a deed from Barnes and wife to Mitchell and Tansey, who are trustees of the Transfer Company, for lots 1, 2 and 3, of block 237, and the land on Front Street lying between those three lots and the river. Plaintiffs acquired lot 7 by deed dated 29th of March, 1880. It is described as bounded west by Commercial Street, and east by proposed Front Street. All the mesne conveyances from Bogy, to whom the land was assigned in partition, to plaintiffs' grantor, bound lot 7 west by Commercial Street. Heman acquired lots 5 and 6 in March, 1881, a year after the date of plaintiffs' deed. On the next day he reconveyed them to Mitchell and Tansey to hold after September 1, 1884, Heman to fill up to the grade such parts as he might quarry out, and Mitchell and Tansey to have the sole right to lay railroad tracks on the lots. It was admitted that defendants had begun to quarry, and, unless restrained, would quarry Commercial Street for a depth of fifty feet. The testimony shows that Commercial Street has been quarried by different persons from time to time since 1857, and during that time was not fit for travel, and has never been used as a thoroughfare, though it might be crossed at different points, the old quarries being from time to time filled up. There is now a gully twelve feet deep across the street in this block. Oertel testified that he bought ground in block 237, and quarried on lots 8, 9 and 10. In 1877 he formed a partnership with plaintiffs, to whom he sold a two-thirds interest in this quarry, which extended across Commercial Street. Heman had gone over his line only a foot or two on Commercial Street, but plaintiffs have quarried to a depth of sixty-three feet below Heman's lot. Heman testified that plaintiffs were quarrying right on Commercial Street in the July and August of 1881; and that plaintiff Veiths told defendants that it was a public highway; that they had no right to quarry it, but that he alone had such right; that he had it pretty near out himself; and told every one else that it was a public highway on which they had no right to quarry.

1. The trial court dissolved the injunction, and we think that, upon the evidence, this was right. Plaintiff Veiths himself testified that it was...