Poertner v. Russel

Lyon, J. I. It is claimed by tbe learned counsel for the appellants,.that the complaint does not state a case proper for equitable relief, and hence that the county court has no jurisdiction to grant the injunction which, it is alleged, the appellants have violated. The jurisdiction of a court of equity to entertain an action brought by the owner of the reversion, against the tenant, whether for life or for years, to stay waste threatened or being, committed-, and to interpose its injunction to prevent such threatened waste, cannot be doubted. This jurisdiction has been so universally asserted and- exercised by courts of equity, that all of the legal remedies for waste have nearly fallen into disusa The common law action for waste is of rare occurrence in modern times,' and the various remedies given by the statute of Gloucester (13 Edw. I., ch. 22) and other English statutes, have given way to the action on the case for waste ; and the latter, in its turn, has been very nearly superseded by the action in equity to stay waste. This equitable jurisdiction is sustained on the ground that the remedy at law is at best an inadequate one. Of course there can be no remedy at law until the waste is actually committed, and it is well settled that the reversioner need not wait until waste has actually been committed before bringing his action. “ If he ascertains that the tenant is about to commit any act which will operate as a permanent injury to the estate, or if he threatens or shows any intention to commit waste, the court will at once interfere and restrain him by injunction from doing so.” Bouvier’s Law Dictionary, title “ Waste,” subdivision 9, and cases cited. To illustrate the inadequacy of the remedy at law for waste, it may be observed that at common law the action could only be maintained against tenant in dower, tenant by the courtesy, and guardian in chivalry, and the remedy was extended by statute against tenants for life and for years, and some others. Jefferson v. The Bishop of Durham, 1 Bos. & P., 105; Eden on Injunctions, ch. VIII, p. 104, 1st Am. ed. An action on the — 200 — case will not lie at law for permissive waste (that is, tbe neglect or omission to do wbat will prevent injury); but in equity an injunction will be granted to restrain perjnissive as well as voluntary waste. 2 Story’s Eq. Jur., § 917, and cases cited. In tbe same section Judge Story sums up the whole question of equitable jurisdiction in such cases in the following language: “ Prom this very brief view of some of the more important cases of equitable interference in cases of waste, the inadequacy of the remedy at common law, as well to prevent waste as to give redress for waste already committed, is unquestionable, and there is no wonder that the resort to the courts of law has, in a great measure, fallen into disuse. The action of waste is of rare occurrence in modern times ; an action on the case for waste being generally substituted in its place, whenever any remedy is sought at law. The remedy by a bill in equity is so much more easy, expeditious and complete, that it is almost invariably resorted to. By such a bill not only may future waste be prevented, but, as we have already seen, an account may be decreed and compensation given for past waste.” And again in § 919, the learned author says: “ The jurisdiction, then, of courts of equity, to interpose by way of injunction in cases of waste, may be referred to the broadest principles of social justice. It is exerted where the remedy at law is imperfect, or is wholly denied; where the nature of the injury is such that a preventive remedy is indispensable, and it should be permanent; where matters of discovery and account are incidental to the proper relief; and where equitable rights and equitable injuries call for redress, to prevent a malicious, wanton and capricious abuse of their legal rights and authorities by persons having but temporary and limited interests in the subject matter. In this case, the complaint shows that certain machinery, the property of the plaintiff and part and parcel of the realty, was about to be taken down and removed by tbe defendants, to tbe great and irreparable mischief and injury of the plaintiff and — 201 — bis property. Within the principles above stated, this is enough to give the court jurisdiction to award the injunction, without the further averment of the insolvency of the defendants. The case of Van Cott v. Milwaukee, 18 Wis., 247, cited as asserting a doctrine in opposition to that here laid down, fails to do so. That case simply decides that a court of equity has no jurisdiction to restrain the collection of taxes illegally or improperly assessed upon personal property. It is obvious that the case has no application to the subject under consideration. II. It is further claimed that the court erred in directing the appellants to be examined before a referee on written interrogatories, for the alleged reason that the statute only authorizes such a proceeding when the defendant has been arrested on an attachment, and not w'hen, as in this case, the proceedings are commenced by an order to show cause, and no attachment has been issued. Tay. Stats., 1741, § 19 (R. S., ch. 149, sec. 19). Ch. 149 of the Revised Statutes (Tay. Stats., 1737), entitled, “ Of proceedings as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions,” was first enacted in this state in the Revised Statutes of 1849, ch. 115, and is a substantial, if not a literal, transcript of the statute of New York on the same subject. Before it was adopted here, this statute received judicial construction in that state in the cases of McCredie v. Senior, 4 Paige, 378, decided in 1834, and The Albany City Bank v. Schermerhorn, 9 Paige, 372, decided in 1842; and in both of these cases the practice here pursued was held to be authorized by the statute. When we borrowed the law, we took with it the construction previously given to it by the courts of the state from which we borrowed it. It must therefore be held that' the order requiring the appellants to be examined upon written interrogatories before a referee was regular. III. Having thus seen that the complaint states a cause of action, and that the proofs were regularly taken, we are brought — 202 — to consider whether such proofs show that the appellants are guilty of a violation of the injunction order. 1. It appears that one wagon-load of the machine had been removed from the mill when the order was served on George W. Shepard, on the 17th day of February. The removal was then suspended until the next morning, when, by the direction of Ashlcell K. Shepard, work was resumed, and- the balance of the machine taken from the mill. Such direction was given by him at or near the mill, in the presence of George W. Shepard, who made no objection thereto. The latter denies that he heard his brother give the order of removal, or that he knew the machine was being removed, but the proofs show that had he given the slightest attention to what was occurring in his immediate presence he could not have failed to know that his agents and servants were about to remove the balance of the machine. It was his duty to restrain his employees from doing the prohibited act, as well as to refrain therefrom himself. A mere passive, personal obedience to an injunction order is not always sufficient. It was not sufficient in this case. The proofs are satisfactory that the appellant, George W. Shepard, did not obey the injunction order in good faith, but that, by his inexcusable inattention and negligence the same was violated by his agents and employees. 2. It is proved by a clear preponderance of testimony, that when Ashlcell K. Shepard directed the balance of the machine to be removed from the mill, he knew that the injunction order had been issued and that the same had been served on George W. Shepard. From the time that he knew of the existence of such order, Ashlcell K. Shepard was bound by it. Ramstock v. Roth, 18 Wis., 522; Meade v. Norris, 21 id., 310. The correctness of this rule is freely conceded by the counsel for the appellants. 3. It is charged by the plaintiff (upon information and belief), that the appellant Harvey Russell knew, on the 17th of February, that an injunction had issued, and that the same had been — 203 — served on George W. Shepard; and it appears positively that he knew those facts as early as 11 o’clock A. M. of the next day, and while the machine was being removed by his agents and servants. He has not denied these facts. He has simply denied that he “ was' privy to or had knowledge of, or gave consent in any manner to, the removal of the said machine.” Hence he is chargeable with notice of the injunction on the 17th of February. It does not appear that he made any effort to prevent his employees from further interfering with the machine. He, too, rendered only a passive, personal obedience to the mandate of the court, leaving his employees, and also his partners (who were his agents), to do the forbidden act without objection or remonstrance from him. Under such circumstances we cannot hold him entirely guiltless of the alleged contempt. The county court has, however, treated him very leniently, only adjudging that he pay one-third of the costs of the proceedings, or less than forty dollars. Our conclusion is, that the county court correctly adjudged that each of the appellants was guilty of a violation of the injunction order. IY. It is urged that the penalty imposed upon the Shepards is too great, for the alleged reason that the machine was not the property of the plaintiff when it was removed from the mill. It is claimed that the machine was not an improvement annexed to the premises, as alleged in the complaint, and hence that the title thereto did not pass to the plaintiff by virtue of the terms of the lease. If this position is correct, then it is obvious that the order appealed from, which adjudges that the Shepards shall pay the whole value of the machine, must be reversed, for the reason that, in such case, the plaintiff is, by the order, much more than indemnified for his loss and injury. The proof upon which the above claim is based is.contained in the affidavits of the Shepards (which are alike in this respect), and is as follows : “ That said separator is a machine about 12 feet long, 4 feet wide, 6 or 8 feet high, which sits on the — 204 — floor and can be easily removed. That it is a new patented device, and when defendants took said mill was not in use, and was in fact not patented until May 14, 1872.” It is very clear . that there is here no denial of the allegations of the complaint in this behalf. The machine may be of the specified dimensions, may sit on the floor and be easily removed, and may have been invented after the defendants leased the mill, and yet it may be true that the same is an improvement annexed to the premises, and the property of the plaintiff. We find no error in the amount of penalty imposed by way of indemnity for the violation of the injunction order. Y. The remaining points to be considered relate to the form of the order appealed from. It is said that such order is fatally defective in that, 1. It does not specify the particulars wherein the injunction has been violated, or the manner in which the plaintiff has been injured ; and, 2. It directs that in case of the nonpayment of the sums which they are ordered to pay, the appellants, respectively, shall' be imprisoned in the proper county jail until the same shall be paid. The statute, R. S., ch. 149, secs. 23 and 24, is relied upon to support the first proposition. That statute is applicable only to cases where “ the misconduct complained of consists in the omission to perform some act or duty which is yet in the power of the defendant to perform,” and is not applicable to a case like the present one. Here the record shows fully the particulars in which the injunction has been violated, and no good reason is perceived why that is not sufficient. As to the other proposition, the order is in the form indicated in the same chapter of the R. S., sec. 25. That section is to the effect that when a fine is imposed, imprisonment until such fine is paid, shall be ordered. Although in this case a fine eo nomine has not been imposed, the sum which the appellants Shepard are ordered to pay is in the nature of a fine, the amount of which is fixed and controlled by the extent of the plaintiff’s loss sustained by reason of the violation of the in june — 205 — tion. It is believed that the statute does not contemplate any distinction between the two cases in the form of the order. By the Court. — The order of the county court is affirmed.