Kavanaugh v. City of St. Louis ( 1909 )

DISSENTING OPINION IN BANC.

VALLIANT, C, J.

I concur in the propositions of law laid down in the opinion of my learned Brother Graves, but I draw from them a different conclusion and reach a different result from that reached by him in the application of those principles to the facts of this case.

A forfeiture results from the operation of law, it results immediately when the party whose right is forfeited has done or permitted the act by which he loses his right. It does not require a judgment of court to create a forfeiture. A judgment declaring a forfeiture simply declares that by reason of the facts in controversy a forfeiture had already existed. A party need not wait until he can obtain a judgment of forfeiture before he acts on the assumption that a forfeiture has resulted in his favor. If he acts before obtaining a judgment in his favor he takes the risk of the correctness of his own legal conclusion, but if his conclusion is correct he is not liable in damages for acting on his own judgment.

If you enter into a contract with a man by which you grant him the right to build his fence across a portion of your land to join your fence on a condition subsequent that by a certain time he will do certain things for you and that unless he performs the condition he shall forfeit the right to maintain the fence; he builds the fence but fails to perform the condition, you would not have to go into court for a judgment of forfeiture before you could remove the fence from your land, but you could act on your own judgment, and remove the fence. If, in such case, you should be sued as for a trespass you could plead the forfeiture as a legal defense, and if the judgment of the court should be in your favor on the ground that your adversary had forfeited his right to maintain the fence, the judgment would not create the forfeiture, but would simply be declaratory of the fact that a forfeiture had resulted from the failure of the man to perform the condition. The city of St. Louis has no judicial power to declare a forfeiture, as in the opinion is well said, for the city in that respect has no more authority than an individual, but in a matter in which the city is a party in interest it may judge for itself that a forfeiture has resulted and act on its own judgment, at its own risk of course, just as the man in the case above supposed acted on his own judgment when he removed the fence. If the city grants a party the right to put an obstruction in the street, with a specified condition subsequent that the right will be forfeited if the condition is not performed, and if the city is of the opinion that the condition has not been performed and that the right has been forfeited it may proceed, without waiting for the judgment of a court, to remove the obstruction, holding itself liable of course to an action at law for the consequence.

In the enforcement of forfeitures and in awarding damages for wrongs growing out of acts based on a mistaken assumption that a right had been forfeited, the law courts alone have jurisdiction. Equity has no jurisdiction over the subject of forfeitures except to relieve against them when it would be unconscionable to allow them to be enforced. It may be stated in strong terms’that equity never interferes in a case of forfeiture except to relieve against it, or, what is the same thing, impose equitable conditions on its enforcement. If there are no equitable circumstances appealing to the enlightened conscience of the chancellor he leaves the parties to settle their affairs in a court of law.

There is no branch of its jurisdiction to which a court of equity is more partial than that which enables it to grant relief against a rigid application of a legal result when there are equitable considerations that call for such relief. But in the absence or non-appearance of such considerations a court of equity keeps its hands off and leaves the parties to their legal remedies; it will not aid either one side or the other.

Now what has the equity court done in the case at bar? It has interfered in behalf of a party who apparently has forfeited his right to maintain an obstruction in the street and who shows no equitable considerations why the law should not be allowed to take its course, and, by its decree, the court has tied the hands of the opposite party and imposed on it the burden of coins: to law to have the forfeiture dedared before taking measures in its own hands to right the wrong. There is no suggestion in the petition that the city is insolvent or in any degree unable to respond in damages for its act; there is no ground shown why the aid of a court of equity is needed to prevent an abuse of a legal fight.

In my opinion when the facts of the case were developed at the trial, as they appear in the record before us, the chancellor should have dismissed the bill and have left the parties to fight it out at law.