Weis v. Cox
| Decision Date | 18 May 1933 |
| Docket Number | 25,038 |
| Citation | 185 N.E. 631,205 Ind. 43 |
| Parties | Weis et al. v. Cox et al |
| Court | Indiana Supreme Court |
1. INJUNCTION---Pendente Lite---Purpose.---Generally the purpose of an injunction pendente lite is to preserve the statu quo p. 48.
2. INJUNCTION---Pendente Lite---When Granting Would Terminate Controversy.---Where the granting of a temporary injunction pendente lite would require defendants to move their building wall, amounting to a final adjudication of the controversy it should not be granted. p. 48.
3. INJUNCTION---For Removal of Invading Wall---Ejectment Ineffective.---Where defendant's wall invaded upon plaintiff's premises, a mandatory injunction requiring defendant to remove the wall was the proper remedy, ejectment being ineffective and inadequate as it would require the sheriff to invade defendant's property to execute the order. p. 48.
4. INJUNCTION---Relative Inconvenience of Parties Considered.---In injunction cases the relative inconvenience and injury to the parties may be considered by a court of equity, and this is especially true in mandatory injunctions p. 49.
5. ADJOINING LANDOWNERS---Encroachments---Interlocking Walls---Consent.---If an adjoining landowner consents to the construction of a concrete wall abutting his brick wall in such a manner that the concrete flows into the crevices of the brick wall, there is no trespass and no action will lie for the encroachment. p. 49.
6. ADJOINING LANDOWNERS---Encroachments---Effect of Benefit to Invaded Premises.---If a landowner so constructs a concrete wall, without his neighbor's consent or acquiescence that the concrete flows into crevices of the neighbor's abutting brick wall, such action is wrongful, even though it strengthens the neighbor's wall and is not harmful to him except in the unforeseen event of moving his building. pp. 49, 50.
7. ADJOINING LANDOWNERS---Encroachments---Relative Inconvenience of Parties---Equity.---A wrongful encroachment of a landowner upon the premises of his neighbor may not be so unwarranted as to deprive him of all consideration in a court of equity. p. 49.
8. INJUNCTION---Discretion of Court---Consideration of Relative Injuries to Parties.---The granting or refusing of an injunction rests in the sound discretion of the court, and the inconvenience and damage to the defendant should be considered as well as the benefit to the plaintiff. p. 49.
9. INJUNCTION---Resulting in Unconscionable Damage to Defendant.---Where the granting of a mandatory injunction will result in unconscionable damage to defendant in view of the benefits accruing to plaintiff, the court should act with great reluctance, seeking, where possible, a remedy at law for plaintiff's protection without undue injury to defendant. p. 49.
10. INJUNCTION---Adjoining Walls---Compelling Removal---Remedy at Law.---Where the owner of a brick wall sought to compel removal of an adjoining concrete wall which prevented moving the brick building, evidence that cost of removing the concrete wall would greatly exceed the plaintiff's damages was held sufficient to warrant a finding that plaintiff had an adequate remedy at law in an action for damages and the consequent denial of injunctive relief. p. 49.
11. ADJOINING LANDOWNERS---Encroachments---Adjoining Walls---Acquiescence---Effect on Legal and Equitable Rights.---Where the owner of a brick building, while not expressly consenting, stood by and apparently acquiesced in his neighbor's construction of an abutting concrete wall in such manner as to prevent moving the brick building, such acquiescence created a quasi estoppel, which would preclude distinctly equitable relief but would not cut off legal remedies. p. 50.
12. ADJOINING LANDOWNERS---Encroachments---Adjoining Walls---Compelling Removal---Remedy at Law.---Where the owner of a brick wall sought to compel removal of an adjoining concrete wall which prevented moving the brick building, evidence that cost of removing the concrete wall would greatly exceed the plaintiff's damages was held sufficient to warrant a finding that plaintiff had an adequate remedy at law in an action for damages and the consequent denial of injunctive relief. p. 50.
From Lake Superior Court; Virgil S. Reiter, Judge.
Action by Joseph W. Weis and wife against Mary Cox and husband for a mandatory injunction requiring defendants to remove an encroachment from plaintiff's adjoining building. From an interlocutory order denying a temporary injunction, plaintiffs appealed.
Affirmed.
William J. Whinery, for appellants.
Frederick C. Crumpacker and Edwin H. Friedrich. for appellees.
This is an appeal from an interlocutory order of the Lake Superior Court denying a temporary mandatory injunction to require the appellees to remove certain encroachments from the appellant's adjoining building. The case seems to have been as fully tried as upon a final hearing, the court hearing both record evidence and verbal testimony of many witnesses.
It appears that the parties were the owners of adjoining lots in the city of Hammond; that about thirty years before this action was filed the appellants erected a two-story brick and frame building upon their lot. The building was erected exactly upon the line between the appellants' and the appellees' property; that at that time, and for some time subsequent thereto, the appellees' predecessor in title maintained a building upon the appellees' lot which did not occupy the entire property; that water was thrown from the roof of this building against the appellants' building, and that from this and other causes, appellants' brick wall was washed out and damaged to some extent; that about fifteen years after the erection of the appellants' building, the appellee, Mary Cox, erected a concrete, stone and brick building upon her lot. The wall adjoining appellants' building was constructed of poured concrete. No forms or other means were used to keep the concrete from running into the interstices in appellants' brick wall, which was worn by the mortar having fallen out and occasional parts of bricks having been displaced, and the concrete flowed into the intersections between the bricks to a depth of from one to three and one-half or four inches. The portion of the wall thus affected was full two stories in height and sixty-one feet long. It is alleged that appellees' wall was so constructed without appellants' knowledge or consent, and that appellants had no knowledge of such encroachments until or about August 1, 1925, more than ten years after appellees' building was erected. There is a conflict in the evidence upon this subject, however. The appellee Cox testified that at the time appellees' building was constructed he talked to the appellant, Mr. Weis, who was operating a drug store in appellants' building, and that it was agreed between them that the concrete should be poured against the appellants' wall and that it would make it stronger. Mr. Weis denied that any such conversation ever took place. E. Cole Johnson, an architect and construction engineer, prepared the plans and specifications...
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