Wilson v. Meyer

• Decision Date: 06 June 1905
• Citation: 39 So. 317,144 Ala. 402
• Parties: WILSON v. MEYER ET AL.
• Court: Alabama Supreme Court

39 So. 317

144 Ala. 402

WILSON v. MEYER ET AL.

Supreme Court of Alabama

June 6, 1905

Appeal from Chancery Court, Shelby County; Richard B. Keely Chancellor.

"To be officially reported."

Action by Alfred F. Wilson against Ben Meyer and others to enjoin the threatened trespass on land. From a decree dismissing the bill, complainant appeals. Reversed.

It appears from the bill that complainant or his predecessors in title recovered the land in ejectment from the respondents or those in privity with them, and also obtained a decree in equity quieting the title. Paragraph 5 of the bill alleged that respondents had posted up notices on the limekiln on the property in controversy, warning complainant and others from entering upon the property; that they had purchased material to operate the kiln, and were making arrangements to take possession of same, and would do so unless restrained. Paragraph 6 of the bill is as follows: "That complainant has large quantities of lime rock, suitable to be manufactured into commercial lime, convenient for manufacture at said kiln; that said rock is valuable, and cost complainant a large sum of money, and he is desirous to run said kiln for the manufacture of said lime; that to prepare the quarry to mine said rock, and repair said kiln, etc., and put them in order to run, would require large outlay of money; that complainant does not wish to go to the said expense and run the risk of respondents forcibly taking possession, if he is compelled to submit to the delay of an action at law to recover possession, and the inadequate damages he would be entitled to recover in that event; that the price of lime fluctuates, and that, while it may be profitably manufactured now, it may at any time in the future decline so that its manufactuture would not be profitable." The answer of Ben Meyer, the principal respondent in interest, admits nearly all the material allegations of the bill. The answer of Simon Stein and Meyer-Marx & Co. disclaims any interest in the subject-matter. The material averments of the bill were proved as alleged. On the hearing the chancellor decreed that the complainant was not entitled to the relief prayed and dismissed the bill.

Lackland & Wilson, for appellant.

Keely &amp Middleton, for appellees.

ANDERSON J.

While it is an elementary rule that, in order for a complainant to invoke the aid of a court of equity, it must appear that he has no plain and adequate remedy at law, there are some instances where the remedy at law cannot give adequate redress, and when such a condition exists the injured or threatened party can seek the protection in a court of equity. Cent. Dig "Equity," vol. 19, §§ 151, 154. But a complaining party cannot use a court of equity for the sole purpose of avoiding an action at law which would afford adequate redress, simply because it is more expedient or convenient for him to do so. Yellow Pine Export Co. v Sutherland-Innes Co. (Ala.) 37 So. 922; 16 Am. & Eng. Ency Law, p. 364. If the wrong charged be only a naked trespass, containing no elements of damage, which cannot be redressed by an action at law, a bill would be without equity which seeks to enjoin such a trespass. Wadsworth v. Goree, 96 Ala. 227, 10 So. 848; High on Injunctions, §§ 713, 728; Thomas v. James, 32 Ala. 725; Brooks v. Diaz, 35 Ala. 599; Burnett v. Craig, 30 Ala. 135, 68 Am. Dec. 115. ...