Mathias v. Holland , 132 Va. 274 ( 1922 )

Prentis, J.,

delivered the opinion of the court.

[1] The appellees (complainants), claiming by prescription the right to drain the surface waters from their land over and through the land of the appellant, Mathias, and one Charles Russell, filed their bill in equity alleging that their easement had been unlawfully interfered with by certain pipes or sewers which had been placed • in the drainage ditch, which were too small to carry off the water; that they had notified Mathias, the appellant, and Russell (defendants) either to remove these drain-pipes entirely or to substitute larger ones which would be sufficient to carry off such water.

The defendants demurred to the bill, and their demurrer being overruled, they thereupon filed their separate answers thereto. Depositions were taken and the trial court awarded a peremptory injunction requiring the defendant, Mathias, to remove the pipes on his land within thirty days, and the questions here presented arise on an appeal from that decree.

There is no error in the decree overruling the demurrer, for the jurisdiction of equity to entertain and determine such cases appears to be perfectly well settled. Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Williams v. Green, 111 Va. 205, 68 S. E. 253; Witt v. Creasey, 117 Va. 872, 86 S. E. 128; Muncy v. Updyke, 119 Va. 636, 89 S. E. 884; Clark v. Reynolds, 125 Va. 626, 100 S. E. 468; Landrum v. Tyler, 126 Va. 600, 101 S. E. 788.

The evidence here, however, discloses some peculiar features which are absent from the cases just cited, and it is suggested that the complainants had no right to an injunction until both the existence of the legal right thus to drain the surface water through the land of the defendant and its disturbance had been established previously in an action at law. Without elaborating this question, we adopt the summary found in 5 Pom. Eq. Jur. (2nd ed.), sec. 1963, relating to injunctions to protect easements:

[2-4] “On application for a permanent injunction, if the plaintiff’s right is admitted by the defendant, a judgment at law is not required, as it is obviously unnecessary in such case. So, too, though the defendant denies the plaintiff’s right or the fact of a disturbance of it, yet, if on the evidence before it, the court is of the opinion that there is no substantial dispute, but, indeed that the plaintiff’s right is clear, the injunction will issue; the defendant’s right to a trial at law at best extends no further than to doubtful questions. And even when the questions in dispute are doubtful, the court of equity will pass on them, if both parties consent or submit to the jurisdiction. When, however, there is a substantial dispute between the parties, and they have not submitted to have it decided by the equity proceedings, the equity court will generally require the plaintiff to establish his right at law before granting an injunction. This rule is one of expediency and policy based on the reluctance of equity to decide purely legal questions, and there is a tendency to disregard it in modem cases, even in the restricted form above started.”

These authorities sustain the proposition that under the circumstances indicated the equity court will generally require a previous trial at law: Rhea v. Forsyth, 37 Pa. St. 503, 78 Am. Dec. 441; Oswald v. Wolf, 129 Ill. 200, 21 N. E. 839; Perkins v. Foye, 60 N. H. 496; Oppenheim v. Loftus (N. J. Ch.), 50 Atl. 795; Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. 865; Bailey v. Culver, 84 Mo. 531; Howell Co. v. Pope, etc., Co., 171 Ill. 350, 49 N. E. 497.

[5] It is recognized by Burks, J., in Sanderlin v. Baxter, supra, in this language: “Ordinarily, where the existence of a nuisance (and in a general sense every violation of an easement may be considered a, nuisance—High on Injunction, ch. 12, sec. 544) is controverted, the party seeking the interference of a court of equity will generally be required first to establish his right at law. But it is said that in cases (like the present) where the plaintiff has been long in the exercise of his right, or where delay would be disastrous, the court will not require the right to be first established at law. 2 Story’s Eq. Jur. (11th ed.), sec. 925-f, and cases cited in note.”-

[6] Applying these principles to this case, we find certain conflicts in the testimony, and much obscurity. The obscurity grows out of the assumptions of the witnesses that the court is familiar with the locality, boundary lines, various other ditches, and with their courses and distances. The result is that the printed record leaves the mind in a state of doubt and indecision as to the facts of the controversy. There is a certainly substantial dispute, and the complainants’ rights are not made clear by the testimony. Among the controverted questions are whether or not the long-continued use of the ditch before the drains were put in was adverse or permissive; whether or not a portion of the drain now complained of has been in its present place and condition for more than fifteen years, and another part thereof since 1913, and hence that the plaintiffs may be charged with acquiescence therein; and whether or not the proximate cause of the injuries of which they complain is the recent diversion of a considerable quantity' of water from other lands to and upon the lands of the defendant, which did not formerly flow through this drain. It cannot be doubted, then, that there is a substantial dispute between the parties, the merits of which are not made clear, and the record shows that the appellant has neither waived any of his rights nor submitted them to be decided by the equity court. Under such circumstances, the general rule is that the equity court will require the complainants to establish their right at law before granting a permanent mandatory injunction.'

Taking tall of the peculiar circumstances of this case under consideration, we are of opinion that the court erred in granting the relief prayed for. The disputable issues of fact involved should first be submitted to a jury in a common law action, and this suit in equity held to await the establishment or failure to establish the complainants’ right. If the right is thus established, the mandatory injunction should foe awarded, otherwise the bill should be dismissed.

[7] There are two incidental questions raised. One of these is whether or not these complainants can maintain the suit. It appears that the complainants, Julia J. Holland and John H. Gardner, do not own the property in fee simple, as alleged in the bill, but as remaindermen, subject to the life estate of their grandmother, Julia Gardner, and also occupy it as tenants from year to year. This point is without merit. Both as tenants and as remaindermen, they have a substantial interest in the land, and the alleged easement of drainage appurtenant thereto, and their independent right to institute this suit for its protection cannot be doubted. 19 C. J. 998; 5 Pom. Eq. Jur. (2nd ed.), sec. 1974; Balcum v. Johnson, 177 N. C. 213, 98 S. E. 534.

[8] Another question is as to the costs of the suit. The defendant, Charles Russell, showed that before the suit had been instituted he had sold the land upon which he was charged with obstructing the drainage, and that from that time he had had no further interest therein. There' being no dispute about this, the court dismissed the suit as to him and awarded him his costs; and having decided the case against the other defendant, Mathias, awarded the complainants (appellees) their costs against him. We see no reason for criticism of this adjudication, but the question has become immaterial at this stage of the litigation, because the entire decree will be reversed and the cause remanded for further proceedings, and the judgment for costs will follow the final decree.

Reversed cmd remanded.