Adams v. Birmingham Realty Co. , 154 Ala. 457 ( 1908 )

ANDERSON, J.

“It is a general rule that if a man, either by words or conduct, has intimated that he assents to an act which has been done, and that he will not offer opposition to it, although it could not have been lawfully done without his consent, and he thereby induces auother to do that from which they might otherwise have abstained, he cannot question the legality of the act so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.” — 2 Story’s Eq. (13th Ed.) § 154; Goetter, Weil & Co. v. Norman Bros. 107 Ala. 596, 19 South. 56. And as said by Mr. Pomeroy in his Avork on Equity Jurisprudence (volume 2, § 817) ; ‘‘Acquiescence in the Avrongful conduct of another, by Avhich one’s rights are invaded, may often operate, upon the principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctly equitable remedies to AA’hich he ivould other Avise be entitled. This form of quasi estoppel does not cut off the party’s title, nor his remedy at law. It simply bars his right to equitable relief, and leaves him to his legal actions alone. In order that this effect may be produced, the acquiescence must be Aidth knowledge of the wrongful acts themselves and of their injurious consequences. It must be voluntary, not the result of accident, nor of causes rendering it a physical, legal, or moral necessity, and it must last for an unreasonable length of time, so that it Avill he inequitable even to the wrongdoer to enforce the peculiar remedies of equity, against him, after he has been suffered to go on unmolested, and his conduct apparently acquiesced in. It follows that what will amount to a sufficient acquiescence in any particular case must largely depend upon its OAvn special circumstances. The equitable remedy to Avhich this quasi estoppel by acquiescence most frequently applies is that of injunction, preliminary or final, when sought by a proprietor to restrain a defendant from interference Avith easements, from committing nuisances, from trespassers, or other like acts in derogation of the plaintiff’s proprietary rights. This effect of delay is subject to the important limitation that it is properly confined to claims for purely equitable remedies to which the party has no strict legal right. Where an injunction is asked in support of a strict legal right, the party is entitled to it if his legal right is established. Mere delay and acquiescence Avill not, therefore, defeat the remedy, unless it has continued so long as to defeat the right itself. The same rule applies, and for the same reasons, to a party seeking purely equitable relief against fraud, such as the surrender or cancellation of securities, the annulling of a transaction, and the like. Upon obtaining knoAvledge of the facts, he should commence the proceedings for relief as soon as reasonably possible. Acquiescence, consisting of unnecessary delay after such knowledge, Avill defeat the equitable relief.” Again this same author, in discussing mandatory injunctions (volume 4, § 1359), says: “It should be observed, hoAvever, that no other equitable remedy is more liable to be defeated by acquiescence, or by delay on the plaintiff’s part from which acquiescence may be inferred. The cases require of the plaintiff a promptness in objecting and in taking steps to enforce his objection, upon receiAdng notice of the defendant’s structure or erections which are sought to be restrained, if the circumstances are such that the defendant would be unnecessarily prejudiced by the plaintiff’s delay.”

A mere delay is not sufficient to deprive a party of injunctive relief, as the failure to act must be with a knoAvledge of conditions that would amount to an acquiescence in the doing of the thing subsequently complained of. “When the injunction is sought to compel the removal of structures, walks, buildings, and the like, if the plaintiff knowingly permit the defendant to go on and incur any considerable further expenditure of money before he makes objection, he will generally lose his right to the somewhat special remedy of a mandatory injunction.” Note on page 2699, 4 Pomeroy’s Equity; 16 Cyc. 761; Herman on Estoppel, 1082,1083, 1191-1193. In the case of Knight v. Hallinger, 58 N. J. Eq. 223, 42 Atl. 1045, there was an agreement between two parties that one about to build upon an adjoining lot, which he owned, would not extend the line of his front foundation beyond a certain line, which was the line of his neighbor’s front foundation. Afterwards the first party built a bay window extending beyond the agreed line, and the other party stood by without objection until after the house was completed, and then filed a bill seeking to enforce the agreement. The court held that, having stood by without objection and seeing the house erected, he was not entitled to a decree for its rmoval. The cas of First National Bank v. Tyson, reported in 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46. and in 144 Ala. 457, 39 South. 560, while not unlike the case at bar in principle and fact, did not involve the doctrine, of estoppel, which said defense seems not to have been urged and considered by the court. The third plea, attempted an estoppel, but set up other matter rendering it bad for duplicity, and we hear nothing more of an estoppel as a defense after the plea was adjudged bad for duplicity. The court in no way considered this defense. Here the second plea was held sufficient, and it was established by the weight of the evidence. The complainant saw the plans of the building, had an office near where the work was going on, commended rather than objected to the projection, and took no action looking to a removal for a year after its completion, and not until after the agents of respondent sought to remove certain occupants from one of his houses.

The decree of the chancery court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JYI., concur.