Perry v. Wittich

Taylor, J.: E. A. Perry and others, composing the corporation called “The Pensacola Wharf Company,” filed their bill in equity in the Circuit Court of Escambia county on the first day of July, A. D. 1881, against the appellee, W. L. Wittich, alleging, in substance, that they owned two wharves at Pensacola, reaching out into the bay to deep water from the shore, the same being continuations of Commandencia street and Jefferson street in said city, and lying parallel to each other. That said wharves are valuable and remunerative and highly useful to them and the public in such manner as wharves are usually necessary at sea-port towns. That the navigable waters in the bay in its natural ebb and flow occupied the space lying between said two wharves from the outward'extremities thereof back to the shore, and was navigable and necessary to the full and complete usefulness and enjoyment of their said wharves. That the defendant, without authority, and in violation of his covenants as lessee of said wharves from the complainants for a term of years — 239 — recently expired before the filing of the bill, erected in and over said space between said two wharves and adjacent to the Commandencia street wharf, certain buildings and structures upon piles driven in the soil at the bottom of the bay, several hundred feet out from the shore, and reaching nearly across from wharf to wharf, which structures were being filled up with deposits of ballast stone from vessels, completely destroying the navigability of such area of the bay and greatly and irreparably damaging the value and usefulness of said wharves. The bill prayed for temporary and permanent injunctions, that the defendant be required to abate and remove such structures and deposits, and for damages already accrued to the complainants therefrom. The defendant answered the bill denying the right of the complainantsjto have and maintain said wharves, and denying the material allegations of the bill as to navigability of the water where said structures were erected and between them and the shore, denies all damage.to the complainants’ wharves or franchise, and alleges that the soil under the water where said structures are erected, and from there to the shore, is owned in fee by the defendant, and that he has perfect right and lawful authority to fill in and build up the same, and that the complainants had for years stood by and acquiesced in his occupancy thereof,' and in the expenditure by him of .large outlays of money in said structures, and that the same is an improvement to the useful navigation of the port at that point, rather than a hindrance or depreciation thereof. On the 5th day of July, 1881, temporary injunction was granted as prayed, upon the bill, answer and several affidavits filed for and against the application. — 240 — Replication to the answer was filed on the 5th of December, 1881, and on the 4th of January, 1882, an order was'made, by consent of all the parties, referring the cause to a master to take testimony. . On the 25th of March, 1882, the defendant suggested the death of one of the complainants, R. M. Bushnell, and moved the revival of his interest therein in the name of his executrix: On the 25th of April, 1882, the judge below made the following order in the cause: “Upon affidavit of plaintiffs this cause stands continued.” Nothing further was done in the cause by either the complainants or defendant until the 25th of March, 1887, when the defendant renewed the motion to revive the suit, in só far as the deceased complainant, R. M. Bushnell, was concerned, in the name of his executrix, Sarah L. Bushnell. Notice of the motion was duly served on the attorney for the complainants, and. a certified copy of the letters testamentary to the executrix were produced to the court by the defendant, and on March 28th, 1887, the court made an order making the said executrix a party complainant, instead of her deceased testator, R. M. Bushnell. No testimony was taken by either of the parties, and no further steps were taken in the cause by either party until the 7th day of January, 1888, when the defendant moved for a dissolution of the temporary injunction granted July 5th, 1881. The court, on January 7th, 1888, made an order, upon this motion, dissolving this injunction, but reserving the question of damages to the defendant for future consideration. Prom this order the complainants below have appealed, making their appeal returnable to the January term, 1889, of this court, to which term the defendant was cited to-appear. The record on appeal was not filed here, — 241 — however, until August 31st, 1889. We may here remark, too, that there was no submission of the cause in this court upon briefs or otherwise on behalf of the appellants until November 21st, 1892, more than three years after the cause had been pending here. The only error assigned is the dissolution of the temporary injunction. The contention of the appellants is, that the injunction should not have been dissolved without some further showing on behalf of the defendant that it was originally granted improvidently, particularly after so long an acquiescence therein'by the defendant without any effort towards the dissolution thereof. In Kerr on Injunctions, p. 565, it is asserted that after long acquiescence under an order for an injunction, an application for dissolving it will not be readily entertained. Upon an examination of the cases cited to support the text, we find that this doctrine is applied only to cases where the delay and acquiescence of the defendant in the injunction has so changed the status of the parties that the subsequent dissolution of it would injuriously and inequitably effect the complainant, or permit the defendant to exercise some inequitable or unfair advan - tage acquired by reason of his acquiescence and delay. Bickford vs. Skewes, 4 Mylne & Craig, 498; Glascott vs. Lang, 3 Mylne & Craig, 451; Feistel vs. King’s College, Cambridge, 10 Beav. 491; Great Western Railway Co. vs. Oxford, Worcester & W. Railway Co., 3 DeG., M. & G. 541; Jennings vs. Brighton, etc., Sewers Board, 4 DeG., J. & S. 735. In the case here there appear no circumstances that would render the dissolution of the injunction inequitable or injurious to the complainants by reason of the delay of the — 242 — defendant in moving for such dissolution, or by reason of his acquiescence therein for so long a period. The complainants are not shown to have gone to any expense by the outlay of any moneys upon the subject-matter of the litigation, or to have changed the. status occupied by them in any respect at the time of the granting of the injunction, nor to have been effected in any way by the defendant’s delay in moving for dissolution. On the other hand, there appears no acquisition by the defendant of any unfair advantage by reason of his delay in thus moving, that it would be inequitable to permit him to exercise by dissolution of said injunction. But, so far as the record shows anything to the contrary, the dissolution of the injunction, at the time it was effected, left the parties occupying the same status in which they were found at the time it was granted. In this case there has been a remarkable exhibition of laches on the part of the complainants in its prosecution that is wholly unexplained. In July, 1881, they filed their bill, and at once obtained the order of injunction, the defendant answered denying or avoiding all of its material allegations. Replication to the answer was promptly filed. The complainants then rested content, taking no testimony to sustain their case, for more than seven years. During this period one of their number died, they did not even move to supply his vacant place in the suit by the substitution of his legal representative, but supinely left it for the defendant to become the future actor in the premises. This substitution of parties the defendant effected, as he’ clearly had the right to do under rule 37 of Circuit Court Equity Rules. The injunction granted was only temporary in its terms, and the complainant had no right to keep it extant indefi — 243 — .nitely without taking any steps whatever to maintain their cáse by proofs, or to bring it to some final determination in the courts. Rule 1 for the government of the Circuit Courts in Equity causes provides that any chancery cause not disposed of within three years from the filing of the bill shall be dismissed by the court at the cost of the plaintiff, unless otherwise directed for cause shown. At the time the order dissolving the injunction here was made the cause had been pending for over seven years, and no steps taken by the complainants looking towards its final disposition, and no pretence of any cause was or is urged for such seeming abandonment of their cause by the complainants. The order dissolving the injunction is a practical dismissal of the cause, so far as the complainants therein are concerned, since, in the order of dissolution, the cause is retained simply and solely for the purpose of future inquiry as to any damage that the defendant may have suffered from the injunction. Under the circumstances the ruling of the court dissolving the injunction was proper, but we .think that under the rule there should have been a complete dismissal of the cause. The order appealed from is affirmed, in so far as it dissolves the injunction, but is reversed in so far as it retains the bill, with directions for a further order dismissing the bill.