Clay v. Powell , 85 Ala. 538 ( 1888 )

SOMERYILLE, J.

The complainant, Clay, claims to be the exclusive owner, by purchase, of the right to sell tobacco and cigars in the office of the Florence Hotel, in Birmingham, Alabama, for the space of twelve months from October, 1886. With this privilege he also rented Horn Jackson & McCurdy, proprietors of the hotel, sufficient space in the office to carry on this business, and proceeded openly to carry it on in exercise of his right.

The purpose of the bill is to enjoin the defendant, Hugh L. Powell, and his sub-lessees, Foster Bros. & Co., from any wrongful disturbance of the complainant’s easement. It is alleged that Jackson & McCurdy, wbo are also made defendants to tbe bill, bad, after tbeir agreement witb complainant, cut off a space in tbe hotel office, separating it by a partition of wood and glass, and connecting it by a front entrance witb 19tb Street, and bad rented it to Powell, to be used by bim as a railroad supply store; and tliat Powell, being bimself interested in tbe business, bad allowed tbe defendants, Foster Bros. & Go., to carry on tbe business of selling cigars and tobacco on tbe rented premises, witb notice of complainant’s easement, tbus injuriously competing witb complainant’s business, and interfering witb bis exclusive right.

It is not denied that tbe bill has equity, as one in tbe nature of specific performance, to prevent a sub-lessee from making an improper use of tbe rented premises, in violation of an agreement of which be has notice; and also for tbe protection of an easement by tbe terms of which tbe complainant is entitled to tbe enjoyment of an exclusive privilege. Tbe bill is maintainable, in part, upon tbe principles analogous to those governing tbe equitable remedy of specific performance, and in part upon “tbe necessity of preventing a constantly recurring grievance, resulting from tbe continuous breach of tbe covenant, which can not be adequately compensated by an action for damages.” — Maddox v. White, 4 Md. 72; s. c., 59 Amer. Dec. 67; note, p. 70 — 71; 2 High on Injunctions (2d Ed.), §§ 1150-1151; Parkman v. Aicardi, 34 Ala. 457; s. c., 73 Amer. Dec. 457; 2 Pomeroy’s Eq. Jur. §§ 689, 614, 625; 3 Ib. § 1342; Barrett v. Blagrave, 5 Ves. Jr. 556; Wade on Notice, §§ 289, 300; Manhattan Man. Co. v. New Jersey Stock Yard, &c., 23 N. J. Eq. 161; Frank v. Brunnemann, 8 W. Va. 462.

Tbe appeal is taken from an interlocutory decree dissolving a preliminary injunction granted by the chancellor, restraining tbe defendants from interfering witb, or disturbing tbe easement claimed by tbe complainant. This was done on tbe denial, in tbe answer of Hugh L. Powell, of tbe allegations on which rested tbe equity of tbe bill. There is no assignment of error based on tbe action of tbe chancellor dissolving tbe injunction against Foster Bros. & Co., and hence no question is raised by tbe record as to tbe correctness of that ruling.

Tbe injunction against tbe defendant, Hugh Powell, was based on tbe theory, that be bad some interest in, or power of control over tbe business of Foster Bros. & Co., and that be bad tbe legal authority to revoke a mere license given to them to sell cigars and tobacco on the premises occupied by them. A precedent for sucb an injunction is found in Altman v. Royal Aquarium Society, 3 Ch. Div. (Law Rep. 1876), p. 228, where the complainant, having the exclusive right to sell and exhibit certain foreign wares on the premises of the defendant society, was restrained by injunction “from permitting, or neglecting to prevent,” the sale or exhibition of goods by other persons, in violation of the complainant’s right. — 2 High on Inj. § 1151. But an interlocutory injunction can not be resorted to for the purpose of divesting vested rights, or taking property from the possession of one person and putting it in the possession of another, or of undoing what has already been done; since “it might thereby be productive of as much injury to defendant, as that of which the party aggrieved complains.” The jurisdiction, therefore, as observed by Mr. High, “being exercised to prevent the further continuance of injurious acts, rather than to undo what has already been done, on an interlocutory application for an injunction, courts of .equity will only act prospectively, and will interpose only such restraint as may suffice to stop the mischief complained of, and preserve matters in statu quo." — 2 High on Inj. §4.

The explicit denial by Hugh L. Powell, of all interest in the business of Foster Bros. & Co., and of all power of control over them in conducting it, and the statement of facts made in the answer in support of this conclusion, all go to a direct denial of allegations in the bill, the truth of which is essential to the maintenance of the injunction against this particular defendant. Conceding that he is chargeable with notice of the complainant’s rights, by reason of complainant’s open and continuous occupancy of the premises, the wrong done by Powell, if any, was creating the easement in favor of Foster Bros. & Co., which was by contract for a definite time, in fraud of the complainant’s exclusive privilege, already granted by the hotel proprietors. The defendant could not be compelled by preliminary injunction to interfere with Foster Bros. & Co., so as to prevent them from exercising a right which he had sold them, in connection with the right of occupying the premises to carry on their business. He might thus subject himself to an action of trespass, and a court of equity will not compel one defendant by injunction to commit a trespass on another. The remedy is rather to extend its preventive arm, so as to enjoin the party who threatens to continue the use of his title wrongfully acquired through a breach of contract, trust or confidence, to the prejudice of the complainant.

The remedy of the appellant was to keep in force his injunction against Foster Bros. & Co., the parties themselves who were actually carrying on the business of selling cigars and tobacco in disturbance of his alleged easement. — Jones v. Ewing, 56 Ala. 360; Code, 1886, § 3524. This he has failed to do; and in the absence of any assignment of error, based on the action of the chancellor in this matter, he is without remedy in this court.

There was no error in dissolving the injunction against Hugh L. Powell, and the decree is affirmed.