Wheelock v. Noonan

This is an appeal by the defendant from *293a judgment enjoining him from keeping or maintaining any rock which he had placed there, upon the plaintiff’s premises and directing him to remove said rock by a time specified.

The complaint alleges that in or about the year 1880, the defendant, who then held a contract with the city of New York to open Eleventh avenue, applied to the plaintiff, the owner of eight vacant lots bounded on one side by Eleventh avenue, for permission to pile a small quantity of rock temporarily upon said lots ; that in the course of such application he represented that he desired to place only a small quantity thereon and for a short time only, and promised that he would soon remove it again, as he expected to sell it for macadamizing purposes; that upon the faith of such representations and such promises the plaintiff gave the permission requested; that thereupon the defendant, without plaintiff’s knowledge, piled rock, consisting largely of huge boulders, on said land to the height of twenty or thirty feet and so as to cover almost the entire surface of the eight lots ; that since that time the defendant, though often requested to remove said rock, has neglected and refused to move the same, and that by reason of the aforesaid premises the lots have become utterly unsalable and the plaintiff has been deprived of their use and enjoyment. The prayer is for judgment enjoining and restraining the defendant from keeping said rock any longer upon the lots described, and directing and requiring him, within such time as shall be fixed by the court, to remove all of the said rock from the said lots.

The evidence leaves no doubt that the defendant greatly abused the permission given to him, and that the plaintiff substantially established all the material allegations of his complaint.

It is claimed, however, and this is really the only point presented by defendant’s appeal which requires serious consideration, that conceding all the facts to be true as above stated, a court of equity will not grant a manda*294tory injunction because the plaintiff has a remedy at law.

The question therefore arises, what remedy the plaintiff would have in an action at law.

The defendant claims that his omission and refusal to remove the rock, although wrongful, constitute but a mere breach of contract, and that the measure of damages is the cost of the removal of the rock.

The answer to that is that the duty of removing the rock does no more rest upon the plaintiff, than the duty of rebuilding or replacing the gate rested upon Crain in the case of Beach v. Crain (2 N. Y. 86, 97).

Moreover the evidence shows that there are great and peculiar difficulties to be overcome in the removal of the particular rock complained of, unless an immediate use or market for it can be found for account of contractors in the vicinity.

And, finally, it is to be considered that defendant’s abuse of the permission granted to him, and his subsequent refusal to remove the rock when requested, and keeping it there after that, amount to a continuing trespass upon plaintiff’s land. In this aspect of the case, the plaintiff can only bring successive actions for the loss of the rental value of his lots, but he cannot, in a common law action, recover once for all time, the total diminution of the fee value of the lots, because the trespass is capable of being discontinued, and the law will not presume that it will always continue. This has been expressly decided in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98).

These considerations show sufficiently that the plaintiff, upon the peculiar circumstances of this case, has no adequate remedy at law. A further consideration is that it would be extremely difficult to establish loss of rental value in vacant losts situated as plaintiff’s lots are, and that the plaintiff has a right to have his lots in a condition which permits use and improvement and renders them salable.

*295For the reasons stated, and the additional reason that equity will, interpose to prevent a multiplicity of suits for damages, the case is brought directly within the decision of Corning v. Troy Iron & Nail Factory (40 N. Y. 191).

The judgment should be affirmed, with costs.

(dissenting).—I am unable to concur with the majority of the court that the judgment in this action should be affirmed.

It is not claimed by. this plaintiff that the defendant entered upon the premises, placed any stones upon them, *296or did anything to them after the notice given to him in the spring of 1880, that the license to place rock upon the premises had been revoked ; but the defendant appears then to have abandoned possession of the premises, leaving the rock placed there before that time. The court refused to find that defendant was in possession at the time of the trial.

There is no evidence that would justify the court in holding that the defendant committed a trespass at any time. A trespass was not committed when the rock was placed upon the property, for defendant had, under the license, authority to put it there, which authority continued down to the spring of 1880. After that, defendant did not enter on the premises.

In Miller v. The Auburn & S. R. R. Co. (6 Hill, 61), the court held that a license until revoked, protects the defendant against an action for a wrong. “Indeed, there cannot, in the nature of things, be any legal wrong until the license is countermanded.” (See also Pierrepoint v. Barnard, 6 N. Y. 279).

That the defendant had broken his contract or agreement with the plaintiff is established, and for such breach plaintiff has an action at law for the damages caused thereby. The plaintiff claims «that a trespass was committed when the defendant left the rock upon the premises after the license was revoked, and failed to keep his agreement to remove it, and I understand the majority of the court sustain him in such claim. It appears to me, however, that this was a breach of contract, not a trespass. In Engle v. Owen (3 Duer, 15), relied on by plaintiff, the judgment appealed from required the defendant to rebuild and close up a doorway, so as to make the same equal to the other parts of the wall, under penalty of being deemed guilty of contempt of court. On appeal, however, this judgment was modified so as io prohibit future alterations only, the court saying, “If the alterations made can be shown to be an injury to the plaintiff, he has a perfect remedy by action to recover the damage.”

*297Beach v. Crain (2 N. Y. 86) was an appeal from a judgment of a justice of the peace for the breach of a covenant contained in an agreement under seal.

In no case that has been cited, or that I have been able to find, has it been held that a trespass was committed because of the failure to remove an obstruction placed upon property under a license ; and I am of the opinion that under such circumstances no trespass is committed. The jurisdiction of a court of equity to restrain the commission of a trespass only attaches, however, when some further necessity for such interference appears than the trespass. It must either appear that the plaintiff has not an adequate remedy at law, or that the interposition of a court of equity is necessary to prevent a multiplicity of suits.

In N. Y. Printing, &c. Establishment v. Pitch (1 Paige, 99), the chancellor said, “ There must be something particular in the case to sustain the jurisdiction of the court, so as to bring the injury under ihe head of quieting the possession, or make out a case of irreparable mischief, or the value of the inheritance must be put in jeopardy by the continuance of the trespass.”

In this case neither of these conditions exists. The plaintiff has a perfect remedy at law, and all the damage sustained by him can be recovered in one action.

Plaintiff is in possession of his property ; the expenses of the removal of the rock can be ascertained with reasonable certainty, and that amount, together with the value of the use of the property from the time of the revocation of the license to the time at which the stones can be removed, will be full compensation to the plaintiff for all damage that he has sustained. No other or further action would be needed to place the plaintiff in exactly the same position in which he was before the stones were placed upon his premises. Nothing prevents the plaintiff from having the rock removed, and after such removal and his recovery of the amount of such damage, plaintiff’s remedy is complete.

*298The case of Meyer v. Phillips (97 N. Y. 485), and cases of that nature are not authorities for the judgment in this case. There, the defendants were doing acts, each of which was a new trespass, and the court said, “This is not a case where the defendants threaten only to commit a single trespass, but they threaten and claim the right to repeat the trespasses every year.”

The necessity of equitable interference arises in such a case from the fact that an acquiescence by plaintiff in the wrongful act must ripen into a right by prescription.

Nor can the action be sustained as an action for the specific performance of a contract.

In Beck v. Allison. (56 N. Y. 366), the court refused to enforce a specific performance of a covenant to rebuild, holding that the execution of contracts of the kind will be found very difficult, if not impracticable, while a remedy at law would in nearly if not in all cases, afford full redress for the injury; and what is said in that case applies to the case at bar.

The case of Jones v. Seligman (81 N. Y. 190), was an action to compel a railroad company to maintain fences on its own land. It was clearly impracticable for the plaintiff to build the fences and maintain the crossings on the land of the railroad company.

I am of the opinion, therefore, that plaintiff failed to maintain a cause of action in equity, and the complaint should have been dismissed.

The trial judge found as a fact that unless the stones were used for paving Eleventh avenue they could not be removed in less than two years, and yet the judgment requires that they be removed in about sixty days.

This is, I think, the first case in which a court of equity has required an act which it finds will take two years to perform, to be performed in sixty days.

(concurring.)—In my opinion, the court will have no difficulty in supervising the performance by defendant of his agreement to remove the rock from plaintiff’s land. It seems to me, that none of the reasons that prevailed in Beck v. Allison (56 N. Y. 366), apply to such a simple work. At least, the defendant will know exactly what is to de done. He is to use the means he used in placing the rock upon the land.

It seems to me that it is not the duty of the plaintiff to create a condition of things for the purpose of getting a cause of action that may indemnify him, which, if he had it, would be a reason for his not being entitled to an equitable remedy. It would be at least a hardship to a party grievously wronged, to be required at the instance of the wrongdoer, to do, at his own expense, what the wrongdoer promised to do, in order to ascertain what damages could be recovered in a legal action. In a case like this, if a wrongdoer does so much harm that the injured party has not the means of remedying it, then it is safe to injure a man without means.

The defendant suggests that there is some inconsistency in the judgment requiring him to accomplish within two months, what by 'the findings, will take two years to accomplish. The time for performance may be extended. This is no reason for reversing the judgment wholly. I concur with Judge Freedman, that judgment should be affirmed, with costs.