Smith v. Gardner

• Citation: 6 P. 771,12 Or. 221
• Parties: SMITH v. GARDNER and others.
• Decision Date: 27 April 1885
• Court: Supreme Court of Oregon

6 P. 771

12 Or. 221

SMITH v. GARDNER and others.

Supreme Court of Oregon

April 27, 1885

Appeal from Multnomah county.

P.L Willis and Charles Gardner, for appellants.

H.Y. Thompson, for respondent.

LORD J.

This is a suit in equity for an injunction to restrain the defendants from trespassing upon the lands of the plaintiffs. In substance it is alleged that the plaintff is the owner of the lands described in the complaint, and that the defendants are the owners of a tract of land lying north of, and adjacent to, said lands; that the plaintiff's lands are meadow lands; and that the defendants have been guilty of a series of trespasses upon plaintiff's said lands, such as driving over his meadows, destroying his grass, cutting up his soil with wagons, and breaking and destroying his fences; and that the defendants threaten to continue the trespasses complained of, to the irreparable damage of the plaintiff. The answer denies nearly all the allegations of the complaint, and then, in a further answer justifies the acts complained of, on the ground that there is a public highway across the plaintiff's lands at the place where said acts were committed; and that the defendants have done nothing more than travel said highway, and remove obstructions therefrom; and that such public highway was established by use for a period long enough to create such an easement. The reply puts in issue the uses and existence of the highway.

The manifest object of this suit is to determine whether a highway exists across the lands of the plaintiff. Analyzed the complaint is nothing more nor less than an action of trespass quare clausum fregit, to which the defendants plead in effect, (1) not guilty; (2) justification, that the fence or gates which they removed were obstructions to a public highway, which they had a right to remove. The replication denied that it was a public highway, and that was the issue to be tried. Indeed, it was said at the argument and in the briefs that the only question in the case was whether or not there is a highway across the plaintiff's land. The mode by which it is sought to determine this question is not in the ordinary course of law, and ought not to be tolerated unless justified by particular facts which authorize the jurisdiction of equity. The practice of granting injunctions in cases of trespass is of comparatively modern origin, and is a jurisdiction sparingly indulged; and only upon a state of facts which show that the injury would be irreparable, and the remedy at law inadequate to redress the wrong or injury complained of. When the nature of the trespass is such as must necessarily lead to oppressive litigation or a multiplicity of suits, or the injury goes to the destruction of the estate in the character in which it is enjoyed, or the trespass cannot be adequately compensated in damages, and the remedy at law is plainly inadequate, a court of equity, in such or like cases, is authorized to interfere and grant relief by injunction. But the general doctrine, well established by the authorities, is that a court of equity will not grant an injunction to restrain a mere trespass where the injury complained of is not irreparable, and destructive of the plaintiff's estate, but is susceptible of pecuniary compensation, and for which he may obtain adequate satisfaction in the ordinary course of law. High, Inj. §§ 697, 703; 3 Wait, Act. & Def. tit. "Trespass," and authorities cited; Pom.Eq.Jur. § 1357, and note.

"Equity," said PEARSON, J., "does not extend its jurisdiction either to offenses against the public or to civil trespasses. In reference to the former no exception has ever been made; but in reference to the latter an exception has been allowed, after much hesitation, and jurisdiction assumed for the prevention of torts or injuries to property by means of the writ of injunction under certain restrictions, namely: two conditions must concur in order to give jurisdiction,--the plaintiff's title must be admitted, or be established by a legal adjudication, and the threatened injury must be of such a nature as will cause irreparable damage." Gause v. Perkins, 3 Jones, Eq. 178. See, also, Bolster v. Catterlin, 10 Ind. 118; Jerome v. Ross, 7 Johns.

Ch. 334; Cooper v. Hamilton, 8 Blackf. 378; McMillan v. Ferrell, 7 W.Va. 229; Smith v. Pettingill, 15 Vt. 84.

Now, what is the injury of which the plaintiff complains? Simply that the defendants have torn down his fence or gate and driven their team across his meadow, whereby the grass has been trampled down and destroyed. It will hardly be contended that the destruction of the fence or gate is not susceptible of pecuniary compensation, and for which the law does not afford a prompt, adequate, and complete remedy. It is true that grass trampled down and destroyed cannot be made to grow again, but the injury can be adequately atoned for in money. If, therefore, the plaintiff can recover for the trespass compensation equivalent or adequate to the injury which he has sustained, such injury, in no sense of the word, can be considered irreparable. All the cases fix the rule to be that the injury must be of that peculiar nature that it cannot be adequately compensated in damages or atoned for in money. There must be some equitable feature or incident to take it out of this rule, or equity will not interfere; as where the injury, although susceptible of pecuniary compensation, yet in the particular case, if the party is insolvent, and on that account unable to atone for it, it will be considered irreparable. But where the facts present no matter requiring equitable relief, and the remedy at law is adequate to do full and complete justice, the court itself should reject such jurisdiction as not within its legitimate province. To hold otherwise would confound all principles upon which the equitable jurisdiction stands. It will only be necessary to cite a few out of many cases to show that the remedy at law is not only adequate, but the one invariably pursued in cases of this character. Cyr v. Madore, 73 Me. 53; Wright v. Tukey, 3 Cush. 290; Burnham v. McQuesten, 48 N.H. 446; Marcy v. Taylor, 19 Ill. 634; Morse v. Ranno, 32 Vt. 600; Sharp v. Wynatt, 1 Lea, (Tenn.) 375; Barraclough v. Johnson, 8 Adol. & E. 99; Le Neve v. Mile End Old Town, 8 El. & Bl. (Q.B.) 1055.

There is another consideration to which it may not be amiss to refer. Upon the admitted facts, the record discloses that the alleged road never was, in one sense, an open and unobstructed highway. It has always had gates or bars across it, through which those traveling over it had to pass. The claim that it is a public road is based upon user and dedication. It is admitted...