Weigel v. Walsh

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, ante, p. 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 charactér that it can not'be-adequately and fully compensated by an .award of. damages^ TJie-injury complained of. -goes Only t'O- the extent, of the plaintiff’s interest in a leasehold which had' but two vreeks; to nin. 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 terms .were-never‘.complied with or accepted, and the defendant, Walsh., swearing very positively that possession was taken after the premises were abandoned by’the plaintiff, and in virtue of his express license” and-authority. Walsh testifies that the permission was' granted upon his statement or suggestion to the plaintiff that Jacobs, the landlord, would compensate him.for the two weeks’ rent. .There.is'a clear and direct antagonism between the witnesses’ on- this point. The burden of proof is on the plaintiff, but it is not necessary to determine the preponderancy of- this conflictipg''"tes'tim"o'hy. .Granting, -that ’the...'.defendants, were, in .fact;.’’trespassers, /¡the plaintiff, nevertheless;- ha.d .an/ample remedy;against.;them.-in.- an *562 action at law for- .the .recovery- of. compensatory damages. In that way the plaintiff can be fully indemnified for the injury complained’of. It would be idle to attempt to'fix and maintain a rational and consistent limitation to the remedy by injunction, in cases of mere trespass, if that remedy is held applicable to the facts of the casé before us.

The judgment will be reversed and the cause remanded.

The other judges concur.