Pearman v. Wiggins , 103 Miss. 4 ( 1912 )

Reed, J.,

delivered the opinion of the court.

Appellees, by bill, sought an injunction requiring appellant to remove certain secondhand gin machinery, boilers, stands, and other things from the streets of the town of Cleveland, because they were a nuisance. The bill alleges that the nuisance was public and private by reason of the things mentioned blocking the street and interfering with travel, and proving a general injury to the people of the town, and that it resulted in an irreparable injury to appellees, and to the business of appellee Wiggins.

It appears that the business of Wiggins was conducted in a store near to or-adjoining the location of the property of appellant, claimed to be a nuisance. It is claimed in the bill that the location of the machinery and other property, which was a part of a gin outfit owned by appellant, was a general inconvenience to appellee Wiggins by delaying him in shipping and receiving freight, and by annoying him and his customers, and in the bill he claimed damages to the amount of five hundred dollars. It is shown that the gin outfit was located on an open space at the side of the store of appellee Wiggins. ■

Upon the bill an injunction was granted, requiring appellant “to remove the obstruction complained of within ten days from the date of the service of the writ.” This injunction commanded the performance of a positive act, and is mandatory.

■In the discussion of temporary mandatory injunctions In 22 Cyc. 743, it is stated: “There is no doubt that the court has jurisdiction to issue preliminary mandatory injunctions; and it is proper to do so in cases of extreme urgency, where the right is very clear indeed, and where considerations of the relative inconvenience bear strongly in complainant’s favor. If the issuance, on preliminary application, of an injunction mandatory in nature will have the effect of granting to the complainant all the relief that he could obtain upon a final hearing, the application should be refused, except in very rare cases, and then only where the complainant’s right to the relief is clear and certain.”

In Pomeroy’s Equity Jurisprudence, vol. 6, par. 636, it is stated that .such mandatory injunction “is used where the injury is immediate, and pressing, and irreparable, and clearly established by the proofs, and not acquiesced in by the plaintiff, since an order directly compelling an abatement of the nuisance, or a removal of the obstruction, cannot be made upon interlocutory motion.”

This court, in the case of Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 South. 113, speaking through Terrall, J., said: “Our statute makes no distinction in respect to the several kinds of writs of injunction; but in respect to mandatory injunctions, which partake of the character of judicial process, it is a sound rule that a writ of this character should not issue, unless the right to it is so'satisfactorily shown that there can be no reasonable doubt of its propriety. .The case-made should be such that there can be no probability that the defendant can make a valid objection to it. Unless the grounds for a prehminary mandatory injunction can be inexpugnable, it is the safer rule to hear both sides before directing its issuance.”

We find, in the case of Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378, a very clear and full discussion of the law applicable to this case. Simrall, C. J., delivering the opinion of the court, said: “To abate a public nuisance, the public authority must move. A private action, either at law or in equity, will not lie, unless the plaintiff has sustained some special damage. The complainant must sustain a special or peculiar damage — an injury distinct from that done to the public at large. . . . Irreparable injury lies at the foundation of relief in equity, which must be so great as to be incapable of compensation in damages.”

In the present case an answer was filed by appellant, denying the allegation of the bill, and a motion was filed to dissolve the injunction. Several affidavits were taken, and, upon hearing, the chancellor overruled the motion.

After reviewing the facts shown by the pleadings and affidavits, in connection with the law as stated above, we conclude that the chancellor was in error in overriding the motion to dissolve this mandatory injunction. This ease should go on to a final hearing, and, following the well-settled rule of law, the proof should be clear and satisfactory before the chancellor should grant a mandatory injunction, as prayed for By appellees, in a private action to abate what is alleged to be a public nuisance.

Reversed and remanded,.