Trowbridge v. True

Carpenter, J. This is a suit for damages for an injury to a certain lot of the plaintiff by the digging away, by the defendant, William D. True, of the soil of the adjoining lot, belonging to Elfreda True, his wife, the other defendant, and occupied by them both, so as to deprive the plaintiff’s land of its lateral support, and to cause it to cave in and fall; and also praying for an injunction against a further threatened digging away of the soil. The court below granted the injunction prajmd for and rendered judgment for damages, the judgment being in both cases against both defendants. Both defendants have appealed to this court. The counsel for the defendants in his brief makes the point that the judgment is rendered in both its branches against both the defendants, while upon the facts found it appears that the wrongful acts have been in the past and will be in the future, so far as they are threatened, the acts of the husband solely, and that his wife has no other relation to them than that as owner of the land. Whatever there may be in this point, it is enough to say that it is not stated in the reasons of appeal. It appears that the declaration contains but a single count, setting out all the facts, and that upon this-single count a judgment is asked for damages, as in an action at law, and for an injunction as in a suit in equity, and the defendants claim that, although under the Practice Act both legal and equitable relief may be administered in the same case, it can be only upon separate counts, the one framed for the one relief and the other for the other. This objection is sufficiently presented by the reasons of [197] appeal, but it appears by the pleadings and finding that the only mode of making the Objection in the court below was by objecting to evidence on the trial, and asking the court to rule that the double relief could not be granted. We might, therefore, dispose of the question by saying that the defendants made this objection- too late. While there is nothing in the Practice Act, or the Rules of Procedure under it, which in express terms applies to this case, yet it is very clear that they intended that all objections to the complaint should be taken advantage of by demurrer, the idea being that everything that is preliminary in its character, and that can be readied by preliminary objections, should be brought to the attention of the court and disposed of before the trial of the case upon its merits, so that the trial shall not be put at hazard by the right on the part of either party to raise questions in the course of it that could have been raised and disposed of before. Thus section 11, chapter 4, of the Rules, provides for a demurrer whenever improper relief is demanded, and section 18 of the same chapter provides that all exceptions for misjoinder of causes of action must be taken advantage of by demurrer, or they' will be considered as waived; while section 10 provides that demurrers may be taken to a specified part .of the complaint. But since the question made is one of general interest to the profession, and of practical importance in the application of the new rules of procedure, we give an opinion upon it, as we are able to do without hesitation. The Practice Act, in express terms, allows both legal and equitable relief upon the same facts. Prac. Act, sec. 7. And the Rules, chap. 2, sec. 9, provide that the plaintiff “ may claim alternative relief” on the same facts, clearly here in a single count; and section 11 speaks of a “ complaint demanding specific equitable relief and also damages.” We think the act and the rules clearly intended that the facts on which this double relief is prayed might be presented by a single count. We can see no good reason against it, while it accords with the general idea of simplicity which [198] is the object of the act. And there seems no good reason why, where each relief is asked upon precisely the same facts, the statement of those facts should be repeated in a second count. The remaining point made by the defendants, and the only one entitled to serious consideration, is that the damage threatened was not-sufficient to warrant the granting of an injunction. It appears that the land of the plaintiff is a lot in the city of Norwich, running through from one street to another, and being about one hundred and twenty-five feet wide on one street, and about fifty-five feet on the other, the depth on the one side being about one hundred and ninety-four feet, and on the other about one hundred and thirty-nine feet.. This lot is abutted on the west by the land of Mrs. True, for'the distance of one hundred and twenty-five feet. On this last piece of land the defendant, William D. True,, has been for some time, and now is, carrying on the business of making cement pipe, for which the soil on his wife’s land is of excellent quality and of a kind difficult to be obtained. For the purpose of thus using it, he has begun at one end of the dividing line to dig away the earth on his own premises to the depth of fifteen feet, and so near to the dividing line that the plaintiff’s soil, of its own weight, has fallen into the excavation. The damage so far has been slight, the court awarding but five dollars for it; but precisely what it may be in the future, if the defendant keeps on for the whole extent of the line, is, of course, uncertain ; but manifestly it cannot, as measured in money, be very large. The court has, however, found that it is “liable to cause irreparable injury to the plaintiff,” and it is easy to see that the injury might be very serious. It is obvious that an injury like this to a city lot may be much more serious in its consequences than a like injury to a remote farm lot. And this is an important fact to be considered in determining whether to grant an injunction, [199] a matter which addresses itself largely to the discretion of the court. But the defendants say that the injury can easily be compensated in damages, and that where this can be done an injunction will not be granted. But this is not the rule. The adequacy of damages to make full compensation is, of course, an important matter to be considered, but is by no means a decisive consideration. High (on Injunctions, § 467,) says: “The jurisdiction of the court in this class of cases does not depend on the value of the property destroyed, but on the question whether its destruction would materially impair the enjoyment of the property as held and occupied at the time of the commission of the trespass.” Again, in § 485, he says it is enough “if the injury would cause a constantly recurring grievance.” And Story, in his Equity Jurisprudence, vol. &, § 928, says: “Formerly courts of equity were extremely reluctant to interfere at all [in cases of trespass] even in regard to cases of repeated trespasses. But now there is not the slightest hesitation, if the acts done, or threatened to be done, would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed, courts of equity did not interfere in cases of this sort, there would, as has been truly said, be a great failure of justice in the country.” And in Davis v. Londgreen, 8 Neb., 47, the court say: “It is the nature of the injury, rather than the magnitude of the damage inflicted, which forms the basis of this redress.” But courts of equity have been specially ready to protect lands by injunction against injuries of this class. Thus High (Injunctions, § 538) says: “ The right to lateral support is regarded as an incident to the ownership of land, and its infringement has been considered as a nuisance which equity may enjoin. Thus the removal and excavation of earth upon adjacent premises in such manner as to endanger the stability of the complainant’s soil and fences by removing their lateral support, will be enjoined.” The [200] same principle is' laid down in 2 Story Eq. Jur., § 929, and in Kerr on Injunctions, 866. In. this case the defendant was not enjoined absolutely against digging on his own land in such a way as to endanger the plaintiff’s soil, which might have debarred him from a rightful use of the soil on his own land, but only from digging beyond a certain depth and slope unless he provided a sufficient artificial support for the plaintiff’s land in the place of the soil removed. This was imposing no serious burden upon the defendant, and we think the injunction, so limited and qualified, was properly granted. In this opinion the other judges concurred.