Sterling v. Littlefield ( 1903 )

Wiswell, C. J.

This court, from the time of its earliest decision upon the subject until the present time, has always adhered to the general rule, that, while, in a proper case, equity will interfere to prevent a threatened and prospective nuisance, it will not take jurisdiction to compel the removal of an alleged nuisance which is already existing,”and restrain its continuance, by injunction, until the alleged infringement of the complainant’s rights and the existence of the nuisance resulting therefrom, have first been established in an action at law. To this rule there are undoubtedly various exceptions which have been recognized by the court. The aid of the equity court and its intervention by injunction may be invoked in the case of an existing nuisance, notwithstanding that the right has not been first determined, when the necessity is imperious, or where immediate and irreparable injury is threatened unless relief be given in equity, or where, on account of the necessity of a multiplicity of suits at law, or even for some other sufficient reason, the remedy at law would be inadequate. It is only necessary to refer to some of the decisions of this court in which this rule has been stated. Porter v. Witham, 17 Maine, 292; Varney v. Pope, 60 Maine, 192; Rockland v. Rockland Water Company, 86 Maine, 55; Tracy v. LeBlanc, 89 Maine, 304.

In the decision of the case of Davis v. Auld, 96 Maine, 559, it was not intended to depart from this general rule to the slightest extent. Upon the contrary, it is there referred to as the “recognized limitation of equity procedure in nuisance cases.” But the court in that case, in construing the statute of 1891, under which the proceeding was commenced, decided that this statute would be superfluous, as the court already had the power to abate the nuisance after verdict, or to stay or prevent the nuisance pending the prosecution, unless the legislature by the passage of the act of 1891 intended to increase the power of the court, or at least to facilitate the exercise of such power as it already possessed in nuisance cases, and that this was the evident intention of the legislature. The question presented in that case depended upon the construction and effect to be given to a particular statute.

In this case the complainant alleges that he is entitled to a right of way from land owned by him to the shore. The easement being thus described in the first deed in which it was created, in 1828: “Together with the privilege of using the wharf on said Trott’s land, paying a due proportion of the expense for keeping said wharf in repair, and also a convenient land passage way for an ox team from said wharf through said Trott’s land to land first mentioned.” That one of the respondents as lessee or under some license from the present owner of the servient estate had, before the commencement of the bill, wrongfully obstructed this right of way by erecting a wooden building on the servient estate, “which wholly obstructs the plaintiff’s said right of way across said lot to the seashore.”

There is no allegation in the bill that the complainant’s rights have been determined in an action at law. There is no allegation from which it can be inferred that there is any imperious necessity for invoking the aid of equity to remove by injunction the already existing nuisance, if nuisance it is. The allegations do not bring the case within any of the exceptions to the general rule above stated. The right of the plaintiff is not clear. It is evident from an inspection of the bill that his right must largely depend upon oral testimony. The ruling of the court below in sustaining the defendants’ demurrer to the bill was correct.

Appeal dismissed with additional costs.