Weigel v. Walsh

• Decision Date: 31 March 1870
• Citation: 45 Mo. 560
• Parties: PHILIP WEIGEL, Defendant in Error, v. THOMAS WALSH et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

45 Mo. 560

PHILIP WEIGEL, Defendant in Error,

v.THOMAS WALSH et al., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

Garesche & Mead, for plaintiffs in error.

The case, if stated on plaintiff's own theory, is one of pecuniary damages. He had no longer any interest in the buildings as against the landlord. The remedy of defendant Weigel is adequate at law, and injunction therefore does not lie. (Burgess v. Kattleman, 41 Mo. 482.)

Finkelnberg & Rassieur, for defendant in error.

Whenever a trespass goes to the destruction of plaintiff's estate, he is entitled to an injunction. (Herr v. Bierbower, 3 Md. Ch. 458; Shipley v. Ritter, 7 Md. 413; Jerome v. Ross, 7 Johns. Ch. 332.) The same state of facts which would constitute waste as against a tenant, will justify injunctive relief as against a trespasser. The duration of plaintiff's estate, whether long or short, is not an element to be considered in the matter.CURRIER, Judge, delivered the opinion of the court.

Although the doctrine is of modern origin, it is nevertheless now a well-settled principle of equity jurisprudence that the remedy by injunction is allowable against a mere trespasser when the injury sought to be averted goes to the destruction of the inheritance, or is otherwise irreparable in its character. (Echelkamp v. Schrader, 45 Mo. 505.) But the sole ground upon which an injunction is granted in such cases is that the trespass complained of operates such irreparable mischief that it is not susceptible of adequate compensation in the way of pecuniary damages. (James v. Dixon, 20 Mo. 79; Burgess v. Kattleman, 41 Mo. 480.) The plaintiff does not bring himself within this principle. It is not alleged that the defendants are insolvent, or that the alleged trespass is of such a character that it can not be adequately and fully compensated by an award of damages. The injury complained of goes only to the extent of the plaintiff's interest in a leasehold which had but two weeks to run. The evidence clearly shows that the plaintiff had, at the time of the alleged trespasses, then already vacated the premises and gone into another house, at the suggestion and for the convenience of his landlord, who was about to take down the old improvements for the purpose of rebuilding; or rather at the suggestion and procurement of the landlord's agents. There were negotiations between the parties as to the possession of the premises; the plaintiff swearing that his...