Special Road Dist. No. 4 of Bolinger County v. Stepp

• Citation: 4 S.W.2d 480,222 Mo.App. 1216
• Parties: SPECIAL ROAD DISTRICT NO. 4 OF BOLINGER COUNTY, RESPONDENT, v. H. A. STEPP, APPELLANT. [*]
• Decision Date: 03 March 1928
• Court: Court of Appeal of Missouri (US)

4 S.W.2d 480

222 Mo.App. 1216

SPECIAL ROAD DISTRICT NO. 4 OF BOLINGER COUNTY, RESPONDENT, v. H. A. STEPP, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

March 3, 1928

Appeal from the Circuit Court of Wayne County.--Hon. E. M. Dearing Judge.

AFFIRMED.

Judgment affirmed.

John H Raney for appellant.

Garry H. Yount of counsel.

Davis & Dameron for respondent.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

Plaintiff filed its petition in Bolinger county to enjoin defendant from interfering with plaintiff's officers and agents in their efforts to remove a bridge. Temporary injunction was issued. Thereafter the venue was changed to Wayne county where on trial the injunction was made permanent. Failing in motion for a new trial defendant appealed.

After alleging its organization, etc., plaintiff alleged that in 1921 there was a certain public road in said district, known as the Greenbrier and Zalma road; that on said road there was a certain steel bridge spanning a watercourse; that said bridge was erected in 1913 or 1914; that in 1921 said public road at the site of the bridge was taken for drainage purposes by a drainage district whereby the bridge and the road at the place were rendered useless for public travel and that a new location for the road was procured. It is further alleged that upon the relocated road it was necessary to bridge a certain watercourse and that plaintiff by its officers and agents made preparation to remove said bridge from its original location to the location desired; that thereupon defendant, and without right or authority so to do, took charge and possession of said bridge and by intimidation and threats of violence prevented plaintiff's officers and agents from removing said bridge. The answer is a general denial.

The defendant sought to justify his conduct respecting the bridge on two theories, viz.: (1) That when the bridge was erected he released to plaintiff district the right of way at and approaching the bridge for the consideration that plaintiff district would "keep this slough bridged for that road and at any time that road was discontinued the land was to fall back to me;" and (2) that the proceedings in the county court to change the location of the road were void and that he, defendant, as a resident and taxpayer in plaintiff district had the right, independent of his personal interests, to protect and preserve the public road. Also it is contended that plaintiff had an adequate remedy at law and that, therefore, injunction would not lie.

We shall first consider the contention that injunction will not lie. For the purposes of this contention it will be conceded that defendant is solvent and able to respond in damages. That injunction in a proper case will lie to restrain a trespass is now well settled. [Nelson v. Kelley, 145 Mo.App. 110, 128 S.W. 832.] But such remedy may not be invoked as a matter of course, and will be exercised sparingly and confined ordinarily to cases where from the very nature of the property or the frequent repetition of the trespass the injury sustained is not susceptible of remediable damages. [32 C. J. 129, 130.] The general rule is that if there is an adequate remedy at law injunction will not lie. [Hill v. Brothers, 217 S.W. 581.] The question presented, therefore, is: Has plaintiff an adequate remedy at law? The statute, section 1969, Revised Statutes 1919, provides that remedy by injunction shall exist where an irreparable injury to real or personal property is threatened and to prevent the doing of any legal wrong whatever, when in the opinion of the court an adequate remedy cannot be afforded by an action for damages. The language, "and to prevent the doing of any legal wrong whatever," appearing in our statute has given rise to what the text writers have called the Missouri rule. [2 Joyce on Injunctions, section 1137.] But notwithstanding the statute, remedy by injunction in this State has been generally confined to cases where no adequate remedy at law existed.

It is argued that plaintiff in the cause at bar had an adequate remedy in an action for damages and that injunction will not lie. It is true that plaintiff could have proceeded in an action for damages, and, if the issues were found in its favor, could have recovered for the value of the bridge appropriated in effect by defendant to his own use and for such consequential damages...