Masson & Besanson's Appeal , 70 Pa. 26 ( 1872 )

The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

It must be admitted that if the court below had jurisdiction of the cause of complaint set forth in the original bill, the final decree entered was entirely within their power. It is well established that wherever a court of equity has jurisdiction, if the relief prayed for cannot for some reason be granted, a compensation in damages may be awarded in lieu thereof. Thus if a plaintiff was originally entitled to specific performance of a contract of sale, but it so happens that before the final decree it becomes impracticable for the defendant to make a conveyance, so that the specific relief prayed for in the bill cannot be decreed, the court will not turn the plaintiff over to seek his damages in an action at law, but will proceed directly to decree him compensation : Dent v. Stuart, cited 1 Ves. Jur. 329; Greenaway v. Adams, 12 Ves. 395; Phillips v. Thompson, 1 Johns. Ch. Rep. 131; Woodcock v. Bennett, 1 Cowan 711. In the case before us, therefore, if there was originally jurisdiction to award the injunction prayed for, and the defendant, in order to prevent a preliminary injunction from issuing, when a motion for such an injunction was.pending, agreed to pay whatever damages might ultimately be awarded, and on this footing the injunction was withheld, and he was allowed to go on and finish his building then in progress, it is very plain that by this means it was no longer in the power of the court to decree the specific relief originally prayed for, and as a necessary consequence, both inherently and by virtue of the agreement of the defendant, they had power to ascertain and award compensation in damages.

Had, then, the court below jurisdiction of the cause of complaint set forth-in the original bill ? The plaintiff and defendant had agreed to build a party-wall between two adjoining houses intended to be erected, belonging to them severally, and. each was to have done and pay for a certain part of the work. .When the plaintiffs had completed their part, the defendants refused to do that which by the agreement devolved upon them. The master below reported that the ground upon which this refusal was rested was riot well founded in fact, and upon the evidence we see no good reason to interfere with his finding. The plaintiffs went on and finished the wall conformably to the agreement, and the defendants being about to make use of it without payment, by inserting in it their posts or rafters, the plaintiffs filed this bill praying for an'iujunction. The wall thus built by license under the agreement, partly on the defendants’ ground, was to be considered, until paid for, as the wall of the plaintiffs, and the threatened act of the defendants in breaking into it as a trespass, “ an act contrary to law, and prejudicial to the rights of the plaintiffs.” Now, it is settled that a court of equity will interfere to restrain by injunction a trespass of a permanent nature; for such a case an action for damages would not be an adequate and effectual remedy. If, on the other hand, the trespass is fugitive and temporary, then adequate compensation can be obtained by an action at law, and there is no ground to justify the interposition of a court of equity.

But where the threatened trespass contemplates a permanent occupation and use of the plaintiffs’ property, the rule is different and the jurisdiction sustained; for such an injury is not reparable by an action for damages, besides that it would require to be followed up by successive actions. This is a well-recognised distinction. Hence, and on this ground alone, a railroad company will be enjoined from entering upon private property for the purpose of constructing tbeir road until compensation shall have been made to the owner: Jarden v. The Philadelphia, Wilmington and Baltimore Railroad Co., 3 Whart. 502; Bonaparte v. The Camden and Amboy Railroad Co., Baldw. 205. “ That the complainant,” says Mr. Justice Baldwin, “may recover damages at law is no answer to the application for an injunction against the permanent appropriation of his property for the road, under a claim of right; this is deemed an irreparable injury, for which the law can give no adequate remedy, or none equal to that which is given in equity, and is an acknowledged ground for its interference. Trespass is destruction in the eye of equity, when there is no privity of estate; it prevents its repetition or continuance, protects the right, arrests the injury and prevents the wrong; this is a more beneficial and complete remedy than the law can give, and therefore the proper one for a court of equity to administer.” He cites Hughes v. Trustees of Modern College, 1 Ves. Sen. 188; Asborn v. United States Bank, 9 Wheat. 842; Belknap v. Belknap, 2 Johns. Ch. Rep. 472. It was accordingly decided by the Court of Common Pleas of Philadelphia county, during the presidency of Judge King, one of the ablest equity judges of this state, that sitting in equity they would restrain by injunction a builder from using his neighbor’s party-wall before payment of a moiety of the cost thereof: Cox v. Willets, 2 Am. Law Journal 327. And see Sutcliff v. Isaacs, 1 Pars. Sel. Eq. Cases 494.

Decree affirmed and appeal dismissed at the costs of the appellants.