Amelung v. Seekamp , 9 G. & J. 468 ( 1838 )

Dorsey, Judge,

delivered the opinion of the court.

In Snowden vs. Noah, 1 Hopkins’ Ch. Rep. 353, it is stated as a general principle, that the writ of injunction is a most important remedy; but it is only used to protect rights which are clear, or at least free from reasonable doubt. And in 1 Mad. Ch. 157, it is asserted, in like manner, that in the case of a private nuisance, it seems necessary that a judgment at law, ascertaining the rights of the parties, should be obtained previous to an injunction. And the same principle is recognized in 8 Con. Eq. Rep. 336, except in cases where the injury is irreparable. But it is insisted that an injunction is always granted and continued in Maryland, to stay trespass, pending litigation at law to try the title to land; and that the same remedy should be applied for the protection of the right now in controversy.

Before we admit the truth of this conclusion, let ns inquire whether the premises upon which it is founded be true. The principles and powers of the court of chancery in England, at the time of the revolution, not altered by our legislation, nor inapplicable to our political institutions, are the same by which the court of chancery of Maryland is governed. Is such a preventive power exercised by the English court of chancery is then the first question to be examined ?

For the exercise of such an abstract power, not an English authority can be produced; whilst the authorities there, are uniform and numerous, that no injunction will lie to restrain the commission of a mere trespass. That a simple trespass by a stranger or person claiming title, unless productive of irreparable mischief or ruin, or to prevent a multiplicity of suits, or required by some peculiar circumstances, is no ground for the issuing of an injunction; see the cases collected in the note to 2 Desaus. Eq. 437, and also the case of Jerome vs. Ross, 7 John. C. R. 315.

The next inquiry is, is it the established chancery doctrine in Maryland to restrain the repetition of a mere trespass, pending proceedings at law to try the right? For such a departure from a well settled principle of equity, as much a

part of the chancery jurisprudence of Maryland as of England, no satisfactory reason can be assigned. The early cases decided in the chancery court of Maryland, which have been regarded as warranting an injunction in all cases of trespass, pending litigation at law, do not establish the doctrine attempted to be deduced from them. They are either cases where fraud in regard to title is the ground of controversy in the chancery court; and where, in the language of the chancellor of New York, in Apthorpe vs. Comstock, 1 Hopkins, 148, the court in which equitable relief is sought, and which alone can give that relief, takes the whole controversy under its own control, and prevents any litigation, excepting that which itself directs, as conducive to its own decision: or they are cases in which the complainant’s title being purely equitable, he could maintain no action at law, and was remediless, but for the interposition of a court of equity. Such are the cases of the Attorney-General vs. Norwood, and Cole vs. Garretson, cited in 1 Bland's Chan. 581, or they are cases, in which it may be supposed, consistently with the facts stated, that the chancellor regarded the mischiefs resulting from the trespasses threatened, as irreparable. If then acting under a misconception of the early cases referred to, the modern doctrine contended for has been, as is asserted, introduced into the chancery court of Maryland, it has never received the sanction of the appellate tribunals of the state, and will not be sustained by this court. The powers of the court of chancery are sufficiently comprehensive and extended, when in cases of mere trespass, their preventive interference, by injunction, is restricted to cases of irreparable mischief; to the prevention of a multiplicity of suits; or to cases where peculiar circumstances imperatively demand the interposition of such a conservative remedy.

We fully concur in the views expressed by Chancellor Kent, upon this subject, in Jerome and others vs. Ross, 7 John. C. R. 315, “that an injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff’s estate, but is susceptible of per-feet pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. It must be a strong case of trespass, going to the destruction of the inheritance, or the mischief is remediless to entitle the party to the interference by injunction;” and of Judge Story, who, in his commentaries on equity jurisprudence, 2 vol. 207, states, “ that courts of equity interfere in cases of trespass, that is to say, to prevent irreparable mischiefs, or to suppress multiplicity of suits, and oppressive litigation.”

Assuming then the existence of that analogy, (as respects the issuing of injunctions) between obstructions to rights of way, and trespasses, no benefit will result to appellee before this court in attempting to invoke to his aid this modern doctrine of the chancery court of Maryland, ought the injunction to have issued or been continued on the ground of irreparable mischief, is the next inquiry ? It is true the appellee in his bill alleges, that by the obstruction complained of, “ great and irremediable damage will accrue to him, his mills aforesaid being thus wholly cut off from their ancient and accustomed outletbut the reasons are not given, the facts not stated, which shew to the court that this great and irremediable damage would result by the continuance of the obstruction, until the right of the appellee should be established at law. It is not charged that he has no other reasonably convenient outlet from his mills, that by this obstruction a valuable portion of the customers of his mills will be driven from them. Í The mere allegation of a complainant, that irremediable damage or irreparable mischief will ensue, is not sufficient. To satisfy the conscience of the court, the facts must be stated, to shew that the apprehension of injury is well founded. ¡ Without such a' statement of facts, no injunction should have issued. And the defect in the bill, if Such a remedy were applicable to Such a case, is not cured by the testimony taken in the cause. So far from its exhibiting a case where the continuance of the outrage complained of would work great and irremediable damage, it shews one which warrants the inference, that the loss or injury resulting would be trivial, and susceptible of adequate compensation in damages at law. But if it were otherwise, the default of the appellee in standing by and permitting the appellant, Amelung, to enclose the land affected by the way in question, and to cultivate and improve the same for four years, would interpose a strong, if not an insuperable barrier to any interference in his behalf by way of preliminary injunction.

Believing that county court erred, both in the order granting, and in the order refusing to dissolve the injunction, this court will sign a decree reversing both those orders with costs in this court.

ORDER REVERSED WITH COSTS.