Mackintyre v. Jones , 9 Pa. Super. 543 ( 1899 )

Opinion by

Rice, P. J.,

It would serve no good purpose were we to introduce into this opinion a recital of the facts. They have been clearly stated in the findings of the learned trial judge, and these are fully sustained by evidence. The findings of the court under the new equity rules, especially if the credibility of the witnesses be a factor, will not be set aside on appeal, unless there be manifest error: Com. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371. Having examined the evidence, with this rule in view, and having discovered no error which would justify us in setting aside the findings of fact the assignments of error relating thereto may be dismissed without further comment.

Assuming, then, the correctness of the findings of fact, the question is not whether a court of equity has jurisdiction to compel one owner in common of a way, who, without the consent of his co-owners, has changed the grade, to restore it to its original condition. We assume that when the court obtains jurisdiction upon any equitable ground it may do directly what it may unquestionably do indirectly by a decree prohibiting the continuance of the existing condition. But whilst the jurisdiction of a court of equity to issue a mandatory injunction is now unquestioned, yet it is a power to be exercised with great caution: Kerr on Injunctions, 51; Bispham’s Equity, 452; Mayer’s Appeal, 73 Pa. 164; Appeal of Frankford Turnpike Co., 11 W. N. C. 184; Orne v. Fridenberg, 143 Pa. 487; Gatzmer v. St. Vincent Society, 147 Pa. 313; Scranton v. Steel Works, 157 Pa. 171; Becker v. Lebanon Railway Co., 188 Pa. 484, and cases there cited. In the exercise of a sound discretion the court will consider, not only the plaintiff’s legal right, but also the existence of a remedy at law and its adequacy; the plaintiff’s delay in invoking the aid of equity until after the defendant, with his knowledge, has expended a considerable sum of money; his acts and declarations before the work was done or during its progress indicating an intention to rely exclusively upon his remedy at law for the recovery of damages; the easy compensability of his injury in money; and the comparative convenience and inconvenience which the granting or the withholding the injunction would cause the parties. All of these considerations enter into the present case and the additional ones,

(1) that to adapt the way to the use for which it was intended a grade other than the original one was absolutely essential; (2) that when the plaintiff was informed that the work was to be done, he objected to the proposed grade and it was then changed at his request and suggestion; (3) that the decree prayed for could not be carried out without affecting injuriously, not only the defendant’s property, but also the property of a third person, not a party to this suit, who has built two houses on the southerly side of the street since it was graded. In view of all the circumstances, it is plain to be seen that he is in a very different position in a court of equity from the one he would have held if he had filed his bill before the work was begun. It is not necessary to go to the length of saying, nor do we decide, that he is estopped from claiming damages, or that they could not have been awarded in this suit if he had framed or amended his bill with that in view, and had furnished evidence by which they might be computed. See Kerr on Injunctions, *49, and opinion of Judge McPherson in Becker v. Lebanon Railway Co. It is sufficient to say, and this the facts as found by the court below warrant us in saying, that it is impossible to grant the specific relief prayed for without practically rendering the street unfit for public and private use, and doing injury to others greatly disproportionate to any benefit the plaintiff would receive; that he “ acquiesced in the necessity for grading and of the doing of the work,” claiming only that he was entitled to compensation for any special injury that might be done to his property; and that such injury can be readily compensated in money damages. Upon these grounds we sustain the decree.

Considerable stress is laid on the fact that he brought an action of trespass shortly after the work was completed, and it is argued that having established by a verdict his right at law he is now entitled to a decree compelling the defendant to restore the street to its original condition. That does not necessarily follow, as the authorities above cited show. Moreover in suing for damages he simply pursued the course that the defendant was led to believe would be pursued, if any legal action was taken. In Heilman v. Railway Co., 175 Pa. 188, Justice Williams said: “The expenditures necessary to the completion and equipment of defendant’s road have been made. The public has acquired an interest in the maintenance and operation of the completed line. A chancellor must now consider a widely different question from that which would have been before him if an injunction had been insisted on before the road was completed. A clear legal right has been invaded in the construction of the defendant’s roadway, but whether that road shall now be removed at this point, the operation of the line prevented, and a public inconvenience and loss inflicted, is a question more for equitable, than strictly legal, determination. An injunction is not of right. It will not be issued when upon a broad consideration of the situation of all the parties in interest, good conscience does not require it.” Many of the equitable considerations — amongst them may be mentioned the public interest — which moved the court in that case to refuse to grant the extraordinary relief prayed for, exist in the present case. It is also to be particularly noticed, that in refusing to compel the defendant to restore the highway to its original condition, the court conceded that the plaintiff’s clear, legal right had been invaded. So after a reargument of the case the same learned judge said: “ Equity does not enforce a strictly legal right, regardless of consequences. It is said, that an injunction is of grace. This does not mean that a chancellor may grant or refuse an injunction as he pleases, but that his action is controlled by considerations of conscience. He does that, which in good conscience he ought to do. The question in each case must depend upon the circumstances out of which it grows, and requires the exercise of judgment, in determining the equities involved: ” Heilman v. Railway Co., 180 Pa. 627. Again in Becker v. Lebanon Railway Co., 188 Pa. 484, the same equitable principle was enforced, in a case where the plaintiff had filed a bill in equity, before that part of the highway in front of his premises had been entered upon by the defendant company, but had not moved for a special injunction, nor taken steps to bring the cause to an issue and hearing, until after the road was built, and in full operation. The plaintiff planted himself on his legal right, and Justice Mitchell who rendered the opinion of the court, conceded, that “ if he were in a court of law, his position would be incontestable,” but after referring to his delay in prosecuting the suit, the change of conditions during this delay, the disproportion of the benefit to the plaintiff to the injury to the respondent, and the public which would result, if an injunction mandatory and destructive in its character were granted, and to the general principles which ought to guide a chancellor in such a case, he concluded as follows: “ In view of the learned judge’s findings in the present case, on the loss to the defendant, the inconvenience to the public, the smallness of the injury to the complainant, and its easy compensability in money, he could scarcely have reached any other conclusion, than that complainant, however clear his right, should be left to his remedy in damages.” Many other cases might be cited to show, that the court below kept well within equitable principles in holding that the plaintiff was not entitled to the specific relief prayed for, but it is unnecessary. This is a proper case for the application of the familiar principle that “Nothing can call forth a court of equity into activity but conscience, good faith and reasonable diligence.”

The decree is affirmed and the appeal is dismissed at the costs of the appellant.