Bailey v. Schnitzius

The opinion of the court was delivered by Scudder, J.

This case is burdened by the large amount of testimony taken by many witnesses examined on the rule to show cause why a preliminary injunction should not be issued. The affidavits annexed to the bill were met by the answer and affidavits in reply. Besides these full evidence was offered and taken, as if in preparation for final hearing. In these preliminary proceedings, therefore, the whole case has been substantially heard, decided and relief given as if on final hearing. Other affidavits than those annexed to the bill for injunction and the answer may not be read unless taken on application and for special reasons. Ch. Rule 121. Cleveland v. Citizens Gas Light Co., 5 C. E. Gr. 201, is a case -where, for such reasons, similar proofs were taken. But although the objection was made when the testimony was taken, and on the argument, yet this practice is discretionary, and not appealable. 3 Dan. Ch. Pr. § 1884; Poor v. Carleton, 3 Sumn. 70 . Such is, however, the true position of the case, that it is here to be examined on the affidavits taken in proceedings for a preliminary injunction, and not on appeal from a final decree.

The gravamen of the defendant’s appeal is, that by this course of proceeding the court has been induced to grant a mandatory order to remove alleged obstructions, which have been put up for the improvement of his property, under claim of right to do-so, and with denial of the right of the complainant to overflow his lands. This right of overflow has never been adjudged at. law; nor, according to the established practice in equity, on a final hearing. The practice of these courts in ordering mandatory injunctions on a preliminary or interlocutory motion was *183 thoroughly examined by Chancellor Zabriskie in Rogers Locomotive Works v. Erie R. R. Co., 5 C. E. Gr. 379, with the conclusion, that a mandatory injunction, or one which commands the defendant to do some positive act, will not be ordered, except on final hearing, and then only to execute the decree or judgment of the court, and never on a preliminary or interlocutory motion, except in cases of obstruction to easements or rights of like nature, in which a structure erected and kept as the means of preventing such enjoyment, will be ordered to be- removed, as part of the means of restraining the defendant from interrupting the enjoyment of the right.

There is, however, a qualification to be added to this statement of the principle established in that case, which has been subsequently approved and followed in our courts. It is applicable to the present case, and is found in Durell v. Pritchard, L. R. (1 Ch. App.) 244, which decides, that there is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the filing of the bill, and there is no difference in this respect between injury to easements and to other rights. But the court will only grant such an injunction to prevent extreme or very serious damage. That was a case on final hearing, where the complaint was made that there was a substantial obstruction both to the right of way and to the light and air by the erection of a building near to that occupied by the complainant. The court said, that as to none of these grounds was there any such extreme or serious damage as to justify the mandatory injunction which was asked. As to the right of way, it was not wholly stopped, and the question was one of comparative convenience of the right of way as it formerly existed and as it now exists, and that the diminution of light and air was not such as would warrant the court in granting the relief which was asked by the removal of the building. The court doubted also whether the complainant had, at the time of filing his bill, any case entitling him to relief in equity. Hart v. Leonard, 15 Stew. Eq. 416, considers the cases wherein a substantial dispute over a private legal right in land is cognizable in a court of equity. We *184 have decided this case on other grounds. In Lord v. Carbon Iron Co., 11 Stew. Eq. 452, Vice-Chancellor Van Fleet has stated what is now the settled law in our courts, that as this form of injunction, to accomplish its purpose, must command or coerce the defendants to do certain affirmative acts, not merely to remain inactive or refrain, it is rarely granted before final hearing or before the parties have had a full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be. It is always granted cautiously, and is strictly confined to cases where the remedy at law is plainly inadequate. A preliminary mandatory injunction will be ordered only in case of extreme necessity. Delaware, Lackawanna & Western R. R. v. Central Stock-Yard Co., 16 Stew. Eq. 77, 605; Herbert v. Pennsylvania R. R. Co., 16 Stew. Eq. 21; Whitecar v. Michenor, 10 Stew. Eq. 6; Longwood Valley R. R. Co. v. Baker, 12 C. E. Gr. 166; High Inj. § 2; 2 Story Eq. § 929 (b).

The examination of the facts in this case do not show that extreme or very serious damage, at least, will ensue from withholding the relief given by this mandatory order, nor does it clearly appear that the complainant is entitled to it.

The allegations and proofs of the complainant that this is an ancient water-course, running through her land, crossing the road, arid flowing over the land of the defendant, are met by the denial in the answer and the affidavits of the defendant that it is such water-course. On the contrary, it is said, that it was a gully or depression on the lands of the complainant, which, in times of heavy or continued rains, received the surface-water and carried it to the road, where it was run off, or soaked away; that it was only in extremely heavy rains that it crossed the road and ran on to the'lands of the defendant; that about 1872 or 1873 ditches and drains were made on the lands of the complainant, that turned all the soakage of the adjacent low, wet and marshy lands into this gully, or into a running stream about five hundred feet north of this gully, which, it is not disputed, is an old water-course; that the effect was to increase the flow of water, and make a trunk across the road necessary at this point to save *185 it from washing out and keep it possible for travel; and that in heavy rains the water passing through the trunk was emptied from the west side of the road on the defendant’s lands; that without this accumulation and concentration of water from these drains and ditches, into the larger artificial ditch made by the complainant in the gully, and leading to the road, there would be no overflow of the road, or over it on the defendant’s lands. If the complainant has imposed this increased burden on the ■defendant’s land to the extent of such increase, the defendant may have the right to protect himself. This he claims he has done by the filling in and embankment on the westerly line of the road and on his own land, of which complaint is made in the bill.

But the particular injury which the complainant sets up as ■causing such extreme or very serious damage as to call for a mandatory injunction, is that, by the back-water and washing in, the road in heavy rains is made impassable. In this, if it appear, she must'show peculiar damage to herself as an individual, and not general damage as one of the public. Her house is near the road, a short distance from this filling or embankment, and the evidence shows, that, since the filling in of the defendant’s land, the road has been impassable in times of heavy rains, whereby the complainant has been obliged to go by another road, about a mile and a half farther, when wishing to travel in that direction over a public road. There is no proof of actual damage by back-water on the complainant’s land causing irreparable injury, nor does it appear that she is barred from getting off her premises on to a public road. It is a case of inconvenience rather than one of extreme necessity; and the relief sought by mandatory injunction, before the facts are fully heard ■and settled on final hearing, is not according to the practice of a .court of equity.

The injunction order will be reversed.

Order imanimously reversed.