Wheeler v. McIntyre

• Decision Date: 20 November 1918
• Docket Number: 4157.
• Citation: 175 P. 892,55 Mont. 295
• Parties: WHEELER v. McINTYRE et al.
• Court: Montana Supreme Court

175 P. 892

55 Mont. 295

WHEELER v. McINTYRE et al.

No. 4157.

Supreme Court of Montana

November 20, 1918

Appeal from District Court, Hill County; W. B. Rhoades, Judge.

Action by W. H. Wheeler against Margaret McIntyre and another for injunction. From a judgment for plaintiff, the named defendant appeals. Affirmed.

L. V Beaulieu, of Havre, and Pray & Callaway, of Great Falls, for appellant.

Donnelly & Carleton, of Havre, of respondent.

PIGOTT J.

By the judgment in this action defendant McIntyre (who will hereinafter be called the defendant) is perpetually enjoined from removing, or attempting to remove, and from digging excavating, and removing the ground and foundation from beneath, a wooden building known as the McIntyre Opera House. On this appeal by her from that judgment her counsel have argued at length the several specifications of particulars in which, as she asserts, the trial court committed error prejudicially affecting her rights. The plaintiff has not seen fit to state or present his contentions, nor has he appeared, on this appeal.

1. Defendant's first contention is that the complaint, her general demurrer to which the court below overruled, fails to state facts sufficient to constitute a cause of action, or to invoke the injunctional jurisdiction of equity. Its allegations may be paraphrased and epitomized thus:

The McIntyre Opera House, a wooden (or, according to the complaint, a "wood frame") building, having a stone foundation imbedded in the earth, at all the times mentioned in the complaint stood, and yet stands, on certain lots situate within the fire limits of Havre. In December, 1915 and while defendant was the owner of the lots as well as of the building, she leased the building, describing and identifying it as being on these lots, to strangers for the term of 3 1/2 years, with the privilege of 3 years additional, at the monthly rental of $100. In October, 1916, defendant conveyed the building and lots to her codefendant. In March, 1917, plaintiff became the assignee of the lease and has kept its covenants. As such assignee he is in possession of the building, and therein carries on the business of exhibiting moving pictures and presenting theatrical performances. An ordinance of Havre prescribes that-

"No wood frame building shall be moved from one place to another within the fire limits, nor from without to within the fire limits, except to a different portion of the same lot upon which it may stand."

Defendant wrongfully and unlawfully threatens to remove the building from its present site, and has made actual preparation for its removal, by digging and excavating the ground underneath it, and by removing parts of the stone foundation. Over plaintiff's protest, she has persisted from day to day in committing such wrongful acts. Should the building be moved to a place beyond the fire limits, or should defendant be permitted to move the building, as she now threatens and is preparing to do, or should she be allowed to continue in such digging and excavation of the earth and removal of the foundation, the estate owned and enjoyed by plaintiff in the building and lots will be totally destroyed, to his irreparable injury. The plaintiff has never consented to or authorized the perpetration of any of the wrongs charged, nor to the removal of the building either within or without the fire limits. He prays for an injunction restraining defendant from moving the building off its present site, and from digging, excavating, and removing the ground and foundation beneath the building.

(a) Defendant insists that the only cause of action attempted to be stated is based upon the ordinance pleaded; that the ordinance does not forbid the moving of such a building from a place within to a place without the fire limits; that the allegation-assumed by her to be the gravamen of the action-that, if the building be moved to a place beyond the fire limits, plaintiff's estate will be destroyed, has no relation to the ordinance; that plaintiff fails to charge defendant with intention or threat to move the building without the fire limits, but, on the contrary, states only that she threatens to remove it from its present site. From these premises she deduces the conclusion that the ordinance is inapplicable, and intimates that, even if it be applicable, equity will not restrain its mere violation at the instance of a private litigant, except where the wrongs threatened amount to a nuisance, or he shows that some irreparable injury, special to himself, would ensue.

But the major premise is wrong, as is also the assumption that the threat to move the building beyond the fire limits constitutes the essence of the cause of action. All reference to the ordinance and the threats to move the building to a place beyond the fire limits may be eliminated, without making the complaint insufficient, as will appear by application to the state of facts remaining of a few fundamental and long-established principles of law.

After elimination of these matters in respect of the ordinance and fire limits, the complaint shows, in substance, that defendant, without plaintiff's consent or authority and against his protest, threatens to, and, unless restrained, will, move from its present site a wooden building standing, with stone foundation imbedded in the earth, on certain land, which building was leased at a monthly rental by her to plaint...