Walters v. McElroy , 151 Pa. 549 ( 1892 )

Opinion by

Mb. Justice Heydbick,

The principal question in this cause is one of- jurisdiction. The plaintiff averred that he was the owner in fee of a tract of land situate in Madison township, Clarion county, and had for certain considerations sold all the coal and minerals therein to one B. Heidrich or to B. Heidrich & Company, together with the right to enter upon the said lands to mine and remove the coal therefrom. He further charged that after a large amount of coal had been removed under and in pursuance of the said grant, mining operations had ceased, and that thereafter the defendants, claiming under B. Heidrich & Company, had entered and made a drift through and under his land into the coal in adjoining lands and laid down a tramway therein, and were, without his consent, carrying coal from the adjoining lands through and over his land; depositing thereon dirt and débris from mines in adjoining lands, and draining water from the said mines upon his laud. These acts were charged to be continuous and harassing, and to cause the plaintiff irreparable injury; and the prayers of the bill were for an injunction, and for an account of the damage sustained.

Upon the face of the bill the court had jurisdiction and the plaintiff was clearly entitled to the relief which he demanded. By the 13th section of the act of 16th of June, 1836, made general as to the courts of common pleas throughout the commonwealth by the act of 14th of February, 1857, P. L. 39, it was enacted that “ The Supreme Court when sitting in banc in the city of Philadelphia, and the court of common pleas of the said city and county shall have the power and jurisdiction of courts of chancery so far as relates, .... to the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.” Under this section it has been repeatedly and uniformly held that injunction is the appropriate remedy for the prevention of trespasses and nuisances which, by reason of the persistency with which they are repeated, threaten to become of a permanent nature : Commonwealth v. Pittsburgh & Connelsville Railroad Company, 24 Pa. 159; Scheetz’s Appeal, 35 Pa. 88; Stewart’s Appeal, 56 Pa. 413; Masson’s Appeal, 70 Pa. 26; Allison’s Appeal, 77 Pa. 221; Bitting’s Appeal, 105 Pa. 517. It is the appropriate remedy for such torts because they are within the letter and the spirit of the statute, and it is no objection that the injured party may have a remedy at law. In such cases the legal remedy may be and usually is wholly inadequate. The damages are frequently difficult of computation, and where they may be readily assessed it will often happen that the expense of a recovery will exceed the amount recoverable for any one of the successive trespasses. It was therefore a wise provision of the legislature that enabled the courts to put an end by a single decree to such controversies as are presented in this record, and the jurisdiction ought not to be abdicated. From this it is not to be inferred, however, that injunction is the appropriate remedy for a single trespass, or for any number of trespasses in the absence of a threat either express or inferable from the manner of their commission that they will be repeated.

It is, however, contended that the plaintiff’s right was denied by the answer, and that this denial ousted the jurisdiction. The plaintiff’s title. being purely legal, a denial of it would undoubtedly have the effect claimed, but an examination of the answer will show that it cannot be fairly said to put in issue any of the material averments of the bill. Conceding the plaintiff’s title, the defendants set up by way of defence a paper bearing his signature, which, if it amounts to anything in respect to the subject of the present contention, is an executory agreement, without consideration expressed, to sell to B. Heidrich & Company, under whom they claim, the land upon which the acts complained of were committed, and aver that a consideration of five thousand dollars was orally agreed to be paid therefor at the time the writing was executed, and that part thereof has been paid to the plaintiff. The matters thus set up, not in denial of the averments of the bill, but in avoidance thereof, are purely equitable, and therefore peculiarly cognizable in a court of equity. By confessing, as they substantially do, the case made in the bill, and setting up the incomplete writing and its alleged oral complement, the defendants became actors, and in effect assume the same position in respect to the subject-matter of their defence that they would occupy as plaintiffs in a bill for specific performance. In such case it would not be contended for a moment that objection could be made to the jurisdiction, or that the parties ought to be sent to a court of law for the determination of the question whether such contract had been made and ought to be specifically performed. But it can make no possible difference that the matter upon which the court is required to pass comes from a defendant instead of a plaintiff : the nature of the controversy remains the same.

The court having jurisdiction of the subject of the controversy there is but little difficulty in respect to the result which ought to have been reached. The agreement so far as it is in writing by which the defendants claim that their predecessors purchased the land is in respect to that matter nudum pactum. More than that, the blank in it indicates that it is incomplete ; that something had been omitted ■ either through inadvertence or because it had not been agreed upon. Manifestly, therefore, it is not self-sustaining, and without more no court would enforce specific performance of it. As against the purchasers, specific performance could not be decreed for the obvious reason that there is nothing upon the face of the paper from which it can be determined what the purchasers ought upon their part to perform : Soles v. Hickman, 20 Pa. 180. The defendants might, however, upon the authority of Bowser v. Cravener, 56 Pa. 132, and Tripp v. Bishop, Id. 424, show, if they could, by parol evidence, that B. Heidrich & Company had by a cotemporaneous oral agreement undertaken to pay a sum certain for the land, and that part of such sum had been paid, and tender payment of the residue. Recognizing the necessity of showing such agreement and payment they undertook to make the necessary proof by calling the plaintiff, but they not only failed to show that a consideration had been agreed upon, at, before or after the execution of the writing, but did show that so much of the writing as relates to a sale and purchase of the land was never intended to be operative. This left them without any defence whatever. To extricate themselves from this difficulty the defendants say that the plaintiff’s land is little worth, while they are engaged in a great mining industry which will be paralyzed if they shall be restrained from a continuance of the acts complained of, and that in equity a decree is of grace and not of right, and, invoking the principle that a chancellor will never enjoin an act when by so doing greater injury will result than from a refusal to enjoin, they ask that the plaintiff be turned over to his remedy at law. The phrase “ of grace ” predicated of a decree in equity had its origin in an age when kings dispensed their royal favors by the hands of their chancellors, but, although it continues to be repeated occasionally, it has no rightful place in the jurisprudence of a free commonwealth, and ought to be relegated to the age in which it was appropriate. It has been somewhere said that equity has its laws as law has its equity. This is but another form of saying that equitable remedies are administered in accordance with rules as certain as human wisdom can devise, leaving their application only in doubtful cases to the discretion, not the unmerited favor or grace of the chancellor. Certainly no chancellor in any English speaking country will at this day admit that he dispenses favors or refuses rightful demands, or deny that when a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandable ex debito justiti.se, and needs not to be implored ex gratia. And as to the principle invoked, that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction, it is enough to observe that it has no application where the act complained of is in itself as well as in its incidents tortious. In such case it cannot be said that injury would result from an injunction, for no man can complain that he is injured by being prevented from doing to the hurt of another that which he has no right to do. Nor can it make the slightest difference that the plaintiff’s property is of insignificant value to him as compared with the advantages that would accrue to the defendants from its occupation.

The plaintiff’s right to an injunction being established, an account of the damages heretofore sustained follows as an incident, and to avoid a multiplicity of suits: McG-owin v. Remington, 12 Pa. 56; Souder’s Appeal, 57 Pa. 498; Allison’s Appeal, 77 Pa. 221. The master’s first report ought, therefore, to have been confirmed.

And now, Oct. 81, 1892, the decree of the court below is reversed and the plaintiff’s bill is reinstated, and it is ordered, adjudged and decreed that a perpetual injunction issue as prayed for in the plaintiff’s bill. And it is further ordered, adjudged and decreed, that the defendants pay to the plaintiff the sum of $179, being the damages found by the master in his first report, with interest thereon from the 14th day of April, 1890, together with the costs of suit, including the costs of this appeal, and that the record be remitted to the court below for the purpose of enforcing this decree.