Palmer v. Israel , 13 Mont. 209 ( 1893 )

Pemberton, C. J.

This is an appeal from the order of the court below, dissolving an injunction. It appears that the appellant, who was plaintiff, on the sixth day of October, 1891, entered into a contract with the city of Helena to pave and curb a certain portion of Main street in said city; that under said contract he had the exclusive right to do the work specified therein, and the right to occupy and use said street for the performance of said work; that while engaged in performing said work, the respondent, with others, entered upon said street and excluded appellant therefrom, and hindered, delayed, and prevented him from performing his contract with said city; and that said respondent, with others, threatened to continue to so do, to the great and irreparable injury of the appellant. The appellant brought this suit to enjoin respondent and others from so interfering and delaying, and damaging him in the performance of said contract. I. L. Israel, Leroy Beveridge, and L. Auerbach, were made parties defendant with respondent herein, but did not resist the injunction. Respondent Sears alone moved for a dissolution of the injunction. The court below, on his motion, dissolved the injunction, from which action of the court this appeal is prosecuted.

The grounds of the motion are. 1. That the complaint does not show that plaintiff has no plain, speedy, and adequate remedy at law; 2. The said injunction is to restrain an alleged trespass, but it does not appear, from the facts set forth in the complaint, that the injury is irreparable, or that the respondents, or any of them, are insolvent. The respondents concede the validity of the contract between the appellant and the city of Helena, under which appellant was curbing and paving Main street in said city, when excluded therefrom, and hindered, delayed, and damaged, as alleged in his complaint, by respondent and others, This contract subjected appellant to heavy forfeitures and penalties in the event of his failure to complete the same within the time therein specified. If the city had been engaged in the performance of this work on its own account, and had been obstructed, hindered, delayed, and damaged by respondent and others in the manner alleged in ‘the complaint, with the threat to continue in the doing of said wrongs, we are of the opinion that the city could have enjoined such trespass and wrongs. (See 2 Dillon on Municipal Corporations, 4th ed., § 659, and authorities cited in note.) That the city could delegate its authority to do this work to the appellant is not questioned in this case. Then, why may he not, like the city, enjoin persons from coming upon the street he is occupying in the performance of his contract, and obstructing his work, excluding him from said street, hindering, delaying, and damaging him, and who threaten to continue the perpetration of such wrongs, injuries, and trespasses? All these things are alleged in the complaint in this case. Mr. Pomeroy says: “If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar actions.” (Pomeroy’s Equity Jurisprudence, 2d ed., § 1357.)

The respondents further contend that it does not appear from the complaint that the injuries resulting to the appellant were irreparable, or that the alleged wrongdoers were insolvent, and hence appellant had a remedy at law against them, after waiting and ascertaining his damages, or that he might proceed against the city for failing to protect him while performing his contract. This contention seems to admit the way clear to a multiplicity of suits, to prevent which is clearly the province of a court of equity, by injunction. In Pomeroy, supra, this able author says: “All the cases, English and American, have professed to adopt the inadequacy of legal remedies as a test and limit of the injunctive jurisdiction; but, in applying vthis criterion, the modern decisions, with some exceptions among the American authorities, have certainly held the injury to be irreparable, and the legal remedy inadequate in many instances, and under many circumstances, where Chancellor Kent would probably have refused to interfere. It is certain that many trespasses are now enjoined which, if committed, would fall far short of destroying the property, or of rendering its restoration to its original condition impossible.' The injunction is granted, not merely because the injury is essentially destructive, but because, being continuous or repeated, the full compensation for the entire wrong cannot be obtained in one action at law for damages. While the same formula is employed by the courts of equity in defining their jurisdiction, the jurisdiction itself has practically been enlarged. Judges have been brought to see and to acknowledge —contrary to the opinion held by Chancellor Kent — that the common-law theory of not interfering with persons until they shall have actually committed a wrong is fundamentally erroneous, and that a remedy which prevents a threatened wrong is, in its essential nature, better than a remedy which permits the wrong to be done, and then attempts to pay for it by the pecuniary damages which a jury may assess. The ideal remedy in any perfect system of administering justice would be that which absolutely precludes the commission of a wrong, not that which awards punishment or satisfaction for a wrong after it is committed.” (Section 1357, supra. See, also, authorities cited in note.)

From the foregoing consideration and authorities we are of opinion that the appellant, upon the facts stated in his complaint, was entitled to an injunction, and that the court below erred in dissolving the same on the motion of respondent. The judgment of the court below is reversed.

Reversed.

Harwood, J., and De Witt, J., concur.