7 Div. 575.
October 29, 1925. Rehearing Denied November 19, 1925.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Knox, Acker, Sterne Liles, of Anniston, and Hood Murphree, of Gadsden, for appellants.
When a bill charges a simple trespass, containing no elements of damage which cannot be redressed by an action at law, it is without equity and will not support an injunction. Deegan v. Neville, 127 Ala. 471, 29 So. 173, 85 Am. St. Rep. 137; Hitt Lbr. Co. v. Cullman Co., 189 Ala. 13, 66 So. 720; Wadsworth v. Goree, 96 Ala. 227, 10 So. 848; Hobbs v. Long Dist. Tel. Co., 147 Ala. 393, 41 So. 1003, 7 L.R.A. (N.S.) 87, 11 Ann. Cas. 461; Bowling v. Crook, 104 Ala. 130, 16 So. 131; High v. Whitfield, 130 Ala. 444, 30 So. 449; Thomas v. James, 32 Ala. 723; Woodstock Co. v. Quinn, 201 Ala. 681, 79 So. 253. Injunctive relief should not be granted on the facts of this case under the rule of balance of convenience, even if the bill contains equity and the proof shows some injury to complainant. 14 R. C. L. 449; McBryde v. Sayre, 86 Ala. 458, 5 So. 791, 3 L.R.A. 861; Clifton Ir. Co. v. Dye, 87 Ala. 468, 6 So. 192; C. W. Ry. Co. v. Whiterow, 82 Ala. 190, 3 So. 23; Woodstock Co. v. Quinn, supra; Folmar v. Luverne, 203 Ala. 363, 83 So. 107. The dismissal of the former bill by the same complainants against the appellant was equivalent to a dismissal on the merits, and became res judicata. Chancery rule 28; Strang v. Moog, 72 Ala. 460; Warrior Co. v. Ala. St. Land Co., 154 Ala. 135, 45 So. 53.
Hugh Walker, of Anniston, and Culli, Hunt Culli, of Gadsden, for appellees.
The trespass being continuous, the remedy at law is inadequate, and injunction will be granted to restrain the same. The fact that no one has yet been killed or injured by any of the rocks thrown does not deprive the bill of equity. Central I. C. Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145, 6 L.R.A. (N.S.) 570, 119 Am. St. Rep. 102, 11 Ann. Cas. 346. Defendant will sustain no hurt or hindrance from the decree in the operation of his business. Central I. C. Co. v. Vandenheuk, supra. It is only when a cause is set down to be heard that a dismissal is held to be the equivalent of a dismissal on the merits. Chancery rule 28.
Conceding that the bill of complaint does not present a case for injunctive relief on account of irreparable injury to complainants' land, we think it does show such a disturbance of the use of the land as, upon settled principles of equity jurisprudence, will warrant such relief. Woodstock, etc., Corporation v. Quinn, 201 Ala. 681, 79 So. 253; Rice v. Davidson, 206 Ala. 226, 89 So. 600; Deegan v. Neville, 127 Ala. 471, 29 So. 173, 85 Am. St. Rep. 137; 32 Corp. Jur. 139, § 185.
The case of Central I. C. Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145, 6 L.R.A. (N.S.) 570, 119 Am. St. Rep. 102, 11 Ann. Cas. 346, wherein injunctive relief against the blasting of fragments of rock upon the complainants' premises was sustained, differed from the instant case only in the circumstance that the premises upon which the rocks were thrown were occupied by the complainant and his family as a dwelling place, whereas here the premises were used only for agriculture and pasturage. But this difference, under the showings of the bill, is, one of degree merely, and not one of kind. If a property owner is entitled to injunctive relief against the menace of flying rocks about his home, we can see no sound reason for denying it when the menace is to the safety of those who have occasion to be upon other lands in the course of their ordinary and legitimate use.
Counsel for respondent insist that the Quinn Case, supra, was decided by this court adversely to the equity of the bill, upon allegations substantially the same as those of the instant bill, and hence that the holding in that case is a precedent of controlling influence here.
It is true that the Quinn Case was a suit for injunction by the present complainants' predecessor in estate against the present respondents' predecessor in the operation of this quarry to prevent the casting of rock fragments in blasting upon the same lands, or some of the same lands, here involved. But a comparative analysis of the two bills of complaint exhibits quite a difference between their respective showings as to the menace of flying rocks to the safety of persons on the land, and also as to the actual use of the land, involving the actual presence of persons lawfully using it at the place of danger. The Quinn Case is therefore not serviceable as a precedent in determining the equity of the instant bill.
The bill does not show that any person has been actually struck by flying rock while on this land; but, when it shows the existence of the danger, due to actual and continuous, or regularly recurring, trespasses of the character complained of, and the actual putting of persons in reasonable fear while actually on the land, we think it makes a case of invasion of property rights, for which the law, in an action of trespass, would give no adequate compensation, because the injury done is without any pecuniary measure.
"Except in the special cases provided for by law, one person cannot take the property of another without his consent, or continually trespass on it and compel the owner to accept payment of money in satisfaction, especially where the threatened trespass will result in depriving complainant of the enjoyment of a property right; and the fact that the injury done or threatened is of a nominal character, or is unsubstantial, or that the wrongful acts, when viewed separately, may not have materially impaired the use and enjoyment of the property affected, does not take away the jurisdiction of a court of equity to prevent the continuance of such wrongful act. The owner of the property will be protected in its enjoyment whether that enjoyment is one of sentiment or a pecuniary one." 32 Corpus Juris, 140, § 185.
In a case like this it is apparent, also, that the costs and expenses of repeated actions at law would probably exceed the amounts severally recovered, and the remedy at law would for that reason be inadequate. Walters v. McElroy, 151 Pa. 549, 25 A. 125; 32 Corp. Jur. 141, § 186.
So far as the proof of the allegations of the bill is concerned, the evidence fairly supports the affirmative finding of the trial court, and that finding must be accorded the effect of a verdict by jury.
It is to be noted that expert witnesses for respondents testified that their blasting operations, properly conducted, need not, and would not, result in casting rock upon complainants' land "in such quantities and sizes as to endanger" persons or stock thereon, and the mandate of the writ extends no further than this. So, as observed of a similar writ in Central I. C. Co. v. Vandenheuk, 147 Ala. 546, 550, 41 So. 145, 6 L.R.A. (N.S.) 570, 119 Am. St. Rep. 102, 11 Ann. Cas. 346, the respondent "cannot sustain any hurt or hindrance in the prosecution of its business by the decree of the chancellor, as the injunction does not restrain it from blasting, but simply from doing so in such a way as to molest the complainant." Obviously, there can be no question here of the balancing of convenience or injury as between the parties — a principle recognized in Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192, and in other later cases.
It is true, as argued by counsel for respondent, that a trespass is an injury to the possession. But the effect of that principle in this case would be that the complaining owner, Mrs. Saks, could not have maintained an action at law for the trespasses here complained of. Garrett v. Sewell, 95 Ala. 456, 10 So. 226, s. c. 108 Ala. 521, 525, 18 So. 737. Yet, for the protection of the possession undisturbed for the benefit of his tenant, a landlord may maintain a bill for injunctive relief. Woodstock, etc., Corporation v. Quinn, 201 Ala. 681 (4), 79 So. 253.
An additional ground for injunctive interference at the suit of Mrs. Saks may be found in a paragraph of respondents' answer, setting up a prescriptive right to cast rocks on this land in the course of its blasting operations, growing out of its alleged practice of doing so for 20 or 30 years. In such a case equity may interfere by injunction to prevent a continuous invasion from ripening into an easement. 32 Corpus Juris, 142, § 188.
As to the dismissal of the former suit between these parties in May, 1924, even conceding that the trespasses complained of and the general issues of merit were the same, it is sufficient to say that the record does not show that the former cause was ever set down for hearing prior to its dismissal by agreement of counsel on both sides; and hence the decree of dismissal cannot be accorded the effect of a dismissal on the merits, under rule 28 of Chancery Practice (Code 1923, vol. 4, p. 916). Boon v. Riley, 171 Ala. 657, 54 So. 997.
We find no error in the decree of the circuit court in equity, and it will be affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.