Mowday v. Moore

Opinion, Mr. Justice Mitchell : The rule in regard to the remedy by injunction, in cases like the present, is thus stated by Adams : “ There is a jurisdiction in equity to enjoin, if the fact of nuisance be admitted or established at law, whenever the nature of the injury is such that it cannot be adequately compensated by damages, or will occasion a constantly recurring grievance : ” Adams’ Eq., *211 ; and in Bispham’s Eq., where it is said that “ the tendency of the modern decisions is certainly very much against the old rule, which required the prior establishment of the legal right: ” page 491, 2d ed., the conclusion is, nevertheless, that “ the modern doctrine may be stated in general terms to be that equity has concurrent jurisdiction with courts of law in all cases of private nuisance, the interference of chancery in any particular case being justified on the ground of restraining irreparable mischief, or of suppressing interminable litigation, or of preventing multiplicity of suits : ” Page 488 ; citing, especially, Carlisle v. Cooper, 21 N. J. Eq. 576 ; and, after the discussion of illustrative cases, the result is summed up as follows : “ If the complainant’s title is doubtful, the ordinary rule is not to interfere until his title has been established at law: ” Page 490. This subject was fully considered upon all the authorities in our own case of Rhea v. Forsyth, 37 Pa. 503, and the true doctrine has nowhere been better expressed. “ Where the plaintiff's right,” says Woodward, J., “lias not been established at law, or is not clear, but is questioned.....not only by the answer of the defendant, but by proofs in the cause, he is not entitled to remedy by injunction. It is not enough that he is able to produce some evidence of his right, wdien there is conflicting evidence that goes to the denial of all right. In a case [612] so situated, the plaintiff should first establish his right in an action at law, and then come into chancery, if necessary, for the protection of the legally established right.” From these views, this court has never departed, and how closely they have been adhered to, even where the nuisance complained of is alleged to be public and common and injurious to the health and safety of a city, is shown by New Castle v. Raney, decided at the present term, and reported in 130 Pa. 546. “ The authorities,” says the Chief Justice, “ uniformly limit the jurisdiction to cases where the right has first been established at law or is conceded. It was never intended, and I do not know of a case in the books, where a chancellor has usurped the functions of a jury, and attempted to decide disputed questions of fact and pass upon conflicting evidence, in such cases.” ■ These principles are settled, and ought to be familiar. But the modern and growing tendency, alluded to by Mr. Bispham in the passage above quoted, to bring such cases into equity in the first place, seems to require a re-statement of the true limits of the jurisdiction. That damage Avhich is imminent and irreparable, or is not capable of adequate compensation in money, may be enjoined Avithout waiting for the process of law, is not intended to be questioned, but the right must be clear, and the facts upon AArhich it rests uncontested. Failing this, all that the swift hand of the chancellor avüI do, is to stay the impending mischief until the facts are established by the ancient and appropriate tribunal. Coming, iioav, to the examination of the case in hand in the light of the foregoing principles, it is at once manifest that this bill cannot be sustained. The mischief complained of is not imminent; it is of considerable standing, and is no Avorse now than it has been for several years past. It affects only the pecuniary interests of complainant, and is capable of full compensation in money damages; and, aboA'e all, its origin from any cause for which defendant is liable is at the least extremely doubtful. A general review of the facts with reference to this last point is all that is necessary. Complainant bought the lot from defendant. The weight of the evidence is overwhelming that it was at least partly made ground, and was wet and spongy at the time of the purchase, and long before. Defendant, Corson, Gehringer, Oberholzer, [613] and Rayner all so testify, and even the rebutting witnesses to the contrary nearly all admit that the silt from the cleaning out of the race, and the refuse from the cooper-shop from time to time, were dumped on it. Complainant knew the character of the land, and that dry cellars could not be built on it. The testimony of defendant, Oberholzer, Rose, Moore, Sr., and Ramey to that effect, is practically uneontradicted. Complainant, with this knowledge, started to put cellars on his lot, the floors of which were below the level of the water in the race. His own witness Hallman, the mason who laid the cellar walls, says the water came in on him so he had to build it in small sections; yet, in spite of this warning, complainant did not lay his wall in cement, nor even puddle the earth, as he did in the second cellar which was thereby kept dry. All the witnesses agree that he might have cemented his wall, or Moore’s line wall and his own cellar wall both, so as to have kept out any water from Moore’s lot, and at trifling expense. Even his own main witness, Calhoun, says it could have been done, but would have been expensive. He does not- say how much, but equally competent witnesses, Corson and Oberholzer, put the additional cost at ten dollars. Unless these witnesses are far astray in their judgment, the complainant’s act in building as he did was one of inexcusable negligence. Turning, now, to the defendant’s acts, what do we find ? He was the owner of a lot subject to the easement of this mill-race, with no control over it, and, so far as appears, no duty to repair. He knew the ground was wet, and showed his appreciation of the fact by constructing all his buildings from Main to Lafayette streets without cellars. When he built he put what is called a line wall on the boundary between his land and complainant's, but all within his own premises, and cross-walls from the Mill street side to this line wall. There is no evidence in the case that this was an unusual way to build. On the contrary, even plaintiff’s witnesses say (Houpt,) that “ cross-walls were the proper thing to put in,” and (Mayberry,) that they “ were necessary to be put there for the construction of Moore’s buildings, and were well constructed.” The only thing suggested is that defendant might have built differently; might have laid a wall in cement parallel to the race. But no witness even now says he was bound to do so, or that it was [614] unusual or improper or negligent to build, as he did. In the absence of such testimony, it is difficult to see wherein the defendant’s fault lay from which any liability would arise. At law the plaintiff would have to make out a case of negligence on the part of defendant, and clear of it on his own part. The rule in equity is certainly no harder on a defendant. Even if this were an action at law, it is doubtful if plaintiff had made out his case. No better evidence of doubtfulness could be found than the failure of a jury to agree in an action for damages for this very same injury. This fact, which was put before the master, showed conclusively that the case was too doubtful for original relief in equity, and should at once have terminated the proceedings. But as the case went to final hearing and decree, we have examined the whole evidence, and are of opinion that in any aspect, whether of negligence of defendant, or contributory negligence of complainant, the complainant has not only failed to make out a clear case in his favor, but has left the weight of evidence on the side of defendant. It is unnecessary to discuss the assignments of error in detail, but it is proper to say, as a matter of practice, that much of the evidence given in rebuttal was erroneously admitted. It was not properly answer to new matter introduced by the defence, but merely cumulative on the ease in chief. Decree reversed, and bill dismissed, with costs.