Stroup v. Chalcraft

Mr. Justice Green delivered the opinion of the Court. The three errors assigned are based upon one and the same ground, and one assignment of error, viz.: That the court erred in overruling the demurrer. This comprises substantially all that plaintiff in error relies on for reversal. The office of a demurrer to a bill in equity is to deny in form and substance complainant’s right to have his case considered in a court of equity, and to admit that all the allegations of the bill properly pleaded are true. Plaintiff in error having demurred to the bill, and abided by his demurrer, and refused to plead to or answer said bill, the following facts are to be taken as admitted by him to be true: That prior to and at the time of filing said bill, Logan Chalcraft, the complainant, was the lawful owner in fee of the land described therein, had fenced and inclosed said land, had cleared up and cultivated part thereof, and was in the lawful, exclusive possession of said land, and there ivas not, nor ever had been, a public highway over the same. That while he was in the quiet and lawful possession of said land and soon after it was so inclosed, George Stroup, the defendant, under the pretense there was a public highway over said land, and that complainant had obstructed the same by fencing his land, with force and violence pulled out the gate posts, and has repeatedly since that time, cut the wires of said fence, torn down said gate posts, and passed over said land, and at a time when defendant was cutting down said fence and complainant remonstrated, defendant threatened to kill him, if he did not keep out of his way, and threatened to cut down said fence every time it should be repaired. That if Stroup is allowed to continue his trespasses complainant will not be able to cultivate his said land, and endless litigation will result. That already one prosecution has been commenced and others will follow. These admitted facts are, in our judgment, sufficient to entitle complainant to the injunction prayed for. But plaintiff in error insists the bill is defective, because it is not therein alleged that the acts of defendant, complained of and threatened to be continued, have been, by the judgment of a law court, held to be trespasses, and until that is shown, equity will not interfere. That it is not alleged defendant is insolvent, and such allegation is essential. That it is not shown by the bill and does not appear, that complainant is without an adequate remedy at law. That a right is disputed between two persons only, and the bill will not lie unless complainant’s right has been established at law. In support of these propositions, the following authorities are cited: Poyer v. Village of Des Flaines, 123 Ill. 111, where it was sought to restrain the prosecution of suits for violation of a village ordinance on the ground that said ordinance was illegal, and it was held the suits wwere quasi criminal in character, and the legality or illegality of the ordinance was purely a question of law, for Law courts to decide; and the court, for very good and sufficient reasons, set forth in the opinion, but not applicable to the facts in this case, held that the prosecution of said suits ought not to be enjoined. It is said in the opinion there is no allegation of insolvency, but such omission is not the reason for denying the relief, and what is there said to the effect that “ if the right is disputed between two persons only, not for themselves and all others interested, but for themselves alone, the bill will not lie unless the complainant’s right has been established at law,” does not apply to the facts in this case. In Dunning v. City of Aurora, 40 Ill. 481, the subject-matter is an alleged nuisance, which is sought to be abated, and an injunction to restrain its further maintenance is prayed for. The court holds, if the thing is itself a nuisance, equity will interfere without waiting the result of a trial at law. But if it is not unavoidably and in itself noxious, but may prove to be so, equity will not interfere until the fact of its being a nuisance is established in an action at law. Oswald v. Wolf, 129 Ill. 200, was a case in which obstructing a private way was asked to be enjoined, and it was held that to entitle complainant to the relief, his case must be clear and free from substantial doubts—a strong case, of pressing necessity. Goodell v. Lassen, 69 Ill. 145, was a case in which the landlord sought to enjoin his tenant, renting for one year, from putting up a pawnbroker’s sign. Held, to be no injury to the reversion, and not irreparable in its character so as to require equitable interference. The cases of Hamilton v. Stewart et al., 59 Ill. 330, and Owens et al. v. Crossett, 105 Ill. 354, cited as supporting the contention that the bill was defective in this case, because the insolvency of Stroup is not alleged, are neither of them applicable in this case, and counsel for plaintiff in error are also mistaken in assuming that “the only contention is, whether or not a public road crosses the land of appellee, and the right to fence it up.” On the contrary, it is admitted by the demurrer that no public highway crosses said land, or ever did. And the right of defendant in error to fence the same is also admitted. The bill in this case is not to enjoin the maintenance of a nuisance, or the commission of a single trespass threatened. Hor is it a case in which any right or authority to commit the trespasses complained of is set up or asserted by the defendant, Stroup. Upon the admitted facts, a stronger case is seldom shown requiring the aid of a court of equity to prevent irreparable injury and a multiplicity of suits. These facts show that Stroup, without the shadow of a right, in open violation of the civil and criminal law, destroyed the property of complainant; committed repeated trespasses; forcibly and in defiance of law', intruded upon and disturbed the complainant in his peaceable and lawful possession of said land; threatened the life of complainant, "when he attempted to prevent the committing of a trespass by defendant, and threatens to continue and repeat his unlawful acts. In view of these facts, it would be unjust and wrong to decide that equitable aid ought to be withheld and the complainant be compelled to prosecute repeated suits to recover damages for the threatened trespasses. Irreparable injury authorizing the interference of a court of chancery by injunction, need not always be such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but is that species of injury, great or small, that ought not to be submitted to on the one hand, or inflicted on the other, and is of constant and frequent recurrence, so that no fair or reasonable redress can be had therefor in a court of law. Wahle v. Reinbach, 76 Ill. 326. The law may afford a remedy in a given case, but if, as in this case, it is not an adequate remedy, equity will interfere, and in one proceeding, by its decree grant full relief, and furnish a more complete and efficient remedy than the injured party could obtain by resort to vexatious and protracted litigation, and prosecuting a multiplicity of suits at great expense. And a bill for injunction will lie, when a proper case is made, whether there is but one wrongdoer to be restrained, or many. Bor was it necessary in this case, to entitle complainant to the relief prayed for, that the insolvency of Stroup should have been alleged. It is not because damages would not ham been paid, if recovered at laiv, that the aid of equity is invoked, but upon the grounds above stated, and held by us to be sufficient. Many cases supporting our decision could be cited, but we deem it sufficient to refer only to a few of those which appear in the printed brief of defendant in error. Shriner v. Morris Land Co., 27 N. J. Eq. 364; Cobb v. I. & St. L. R. R. Co., 68 Ill. 233; McIntyre et al. v. Story, 80 Ill. 137. In the last case, the bill sought to enjoin commissioners of highways from opening a public road through complainant’s land. Defendants admitted by their answer, they had torn down and removed the fence of complainant, as charged in the bill, but alleged they were officers of the town, having charge of its public roads, and express their purpose to continue to remove any fence complainant may erect in or across what they claim to be a highway, and make the point that chancery has no jurisdiction, but complainant’s remedy, if he has any, is at law. The court say this proposition can not be maintained; that if there is no highway at the point in controversy, which defendants may lawfully keep open for the use of the public, then the acts they admit they propose to do would constitute continuing trespasses, might cause irreparable mischief, perhaps lead to continuous strife in the assertion and maintenance of what the parties may deem their respective rights, and ultimately produce serious breaches of the peace and acts of violence; that the facts alleged constitute a clear ground for the intervention of equity, and no complete remedy can be had at law. In the case at bar, Stroup does not set up or assert any right or authority, official or otherwise, to commit the trespasses complained of, but admits by his demurrer he did the unlawful acts, and threatened to repeat them, and will do so unless restrained, and did and threatens so to do upon the false pretense that a public highway existed, where in fact it did not. The injunction was properly granted, and the decree is affirmed.