Wilmarth v. Woodcock
| Decision Date | 19 November 1885 |
| Citation | 25 N.W. 475,58 Mich. 482 |
| Court | Michigan Supreme Court |
| Parties | WILMARTH v. WOODCOCK. |
Appeal from Kent.
Harvey Joslin, for complainant.
O.C Ransom and Mark M. Powers, for defendant and appellant.
This is a general demurrer for want of equity to a bill of complaint filed by the complainant against the defendant to abate a private nuisance. The material allegations of the bill are that the complainant is the owner of lot 15, in block 10 of Bostwick & Co.'s addition to the city of Grand Rapids except a strip six feet in width, front and rear, off from north of said lot; that her lot is 44 feet in width, fronting on Sheldon street, and constitutes her homestead; that defendant owns the land next to and adjoining her land on the north; that a line fence marks the boundaries of their respective lands; that defendant commenced the erection of a barn upon his premises so near the line that she feared the cornice would project over upon her premises; that she made inquiries of defendant as to whether he intended to construct a cornice over her premises; could obtain no information from him as to his intentions; that she warned him that he must not so construct his barn as to cause any part of it to project over her premises. Nevertheless defendant built his barn near the line, and constructed a cornice which projects over her premises a distance of 16 inches at the west end and 6 inches at the east end, and covers a distance of 21 feet in length; that the cornice is built upon a gable of the barn, and at the eaves is about 15 feet above the ground, and at the peak is about 28 feet above the ground; that the projection of said cornice over the line of said lot, as herein set forth, materially and permanently injures her said property; that it would prevent the use of a portion of her said land for the purposes of a residence; that it very materially injures the looks of her homestead, and would very much depreciate the market value thereof and render it unsalable; that, having but a limited amount of land, such an unjust appropriation is an irreparable injury to her homestead, and the evident intent, as your oratrix verily believes, of the said Robert B. Woodcock, in wrongfully infringing upon her rights in this regard, is to ultimately encroach still further upon her premises, as he has given out and insisted that he owns three feet in width off from the north side of your oratrix's said land, which he intends, as your oratrix has been informed and believes, to recover unjustly from her. And your oratrix further shows, and charges the fact upon her best judgment and belief, that if said projection is permitted to remain, her said homestead will be thereby depreciated in its market value, and in value, considering the injury in its looks and convenience in the use and enjoyment of her said property, at least $500.
The defendant claims that the bill states no case for equitable relief,--First, because it appears by the bill that there is a dispute about the boundary; and, second, complainant has an adequate and complete remedy at law, in an action of trespass or trespass upon the case, and because the injury does not appear to be irreparable, since she states the depreciation in the market value of her homestead will be at least $500, and it is not alleged that defendant is pecuniarily irresponsible and unable to respond in damages at least to that amount.
A general demurrer challenges the equity of the case made by the bill, and must...
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