Turner v. Stewart

• Decision Date: 31 October 1883
• Citation: 78 Mo. 480
• Parties: TURNER, Plaintiff in Error, v. STEWART.
• Court: Missouri Supreme Court

78 Mo. 480

TURNER, Plaintiff in Error,

v.STEWART.

Supreme Court of Missouri.

October Term, 1883.

Error to Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Belch & Silver for plaintiff in error.

Edwards & Davison for defendants in error.

MARTIN, C.

This was a petition for an injunction, the substance of which we recite. The plaintiff states that he is the owner and in possession of a private wharf and landing on the west side of the Osage River; that he is engaged in operating a saw-mill and machine for loading and unloading cars with railroad ties, which mill and machine he has erected on said premises at great expense; that he is under contract to furnish and deliver a large amount of lumber to different parties, and that he has a large number of hands in his employment conducting his said business; that the defendants are the owners and proprietors of a steamer called the “Aggie;” that without the consent of plaintiff and against his notice forbidding it, said defendants have at divers times since the 7th day of May, 1880, landed their said steamer at said landing and discharged freight on said premises, and that they threaten to repeat and continue said unlawful acts and trespasses; that by reason thereof the business of plaintiff in sawing, receiving and delivering lumber, and loading and unloading railroad ties is wholly suspended and stopped during the time of said acts and trespasses; that defendants are in the habit of landing and discharging freight and thereby interfering with and suspending the said business of the plaintiff as often as two or three times each week, varying from a half to a whole day; that he is damaged to such an extent that an ordinary action at law would be a wholly inadequate remedy for the injury sustained, and that a continuation of said acts would work an irreparable damage for which a court of law provides no adequate remedy; wherefore the order of the court enjoining defendants from further trespasses aforesaid is asked by plaintiff, and such other and further relief as he may be entitled to.

To this petition the defendants filed a demurrer for want of facts sufficient to constitute a cause of action. It is urged that an injunction will not be granted to restrain trespasses unless the parties are insolvent or the injury irreparable. It is also insisted that the jurisdiction of the matter complained of belongs to the courts of admiralty and not to the State courts. The court sustained the demurrer and thereupon entered final judgment dismissing the petition, from which action of the court the plaintiff presents his writ of error.

1. INJUNCTION VS. TRESPASS.

It is not necessary that the defendant should be insolvent or the wrong irreparable to sustain the right to equitable relief against trespasses. It is provided in our statute that “the...