Christie v. Shankey

Headnote

Injunction—When granted.

Where the damages resulting from the infringement of a party’s rights cannot be adequately proved, equity will interfere and forbid the injury.

Appeal by defendants from a judgment rendered in favor of plaintiffs on a trial of the cause before Hon. J. F. Barnard, at a special term of this court, enjoining defendants from interfering with plaintiffs in the use of certain lands and materials with six cents damages and costs.

On February 22, 1883, DeNoyelles and Verdin leased to plaintiffs for the term of ten years, from April 1, 1883, certain ■ premises, the boundaries of which, as plaintiffs claim, included the land, in the use of which defendants are enjoined from interfering. Before the commencement of the second year of the term the lessors were to “set off and designate ” the line of plaintiffs’ land, and granted them the exclusive right of obtaining brick materials as far north as the “Daniel DeNoyeU.es property.” Accordingly De-NoyeH.es, one of the lessors, before the commencement of the second year did set off and designate plaintiffs’ north line, and located it at the place where plaintiffs now claim it to be.

At the time of the agreement upon the line, a stake was driven and mark made at places pointed out by De Noyelles, and, to make the line more certain or straight, a survey was made running from a dogwood bush (which is conceded by all to be in the line) on the course given in the judgment roll in partition as speciaHy directed by DeNoyelles, which proved the stake to be on the true line, but the mark on the coffer-dam built in the river in front of the lands in question was about two feet north of a continuation of the line from the bush to the stake, and a mark was accordingly made on the coffer-dam two feet further south.

Ever since that time the plaintiffs have been in possession up to this line, stripping their bank, cutting and carrying away clay, building roads at large expense; their right, to such possession having been undisputed and assented to' by DeNoyelles.

In one instance last year the employees of plaintiffs cut a bunch of clay six to eight feet long about three feet north, of this line. DeNoyelles the next day complained that they were over the line and again indicated where the line was, fixing it at the same place as before, and the witness Rose, in DeNoyelles’ presence, rolled a stone on the place so pointed out where it has ever since remained.

The lessors were' owners of the land on both sides of the disputed line, and on January 29, 1887, demised to defendants certain premises, being part of the “Daniel DeNoyelles’ property” down to the line of the “Edward DeNoyelles’ property,” the latter being that which plaintiffs had leased and were in possession of and had been in possession of for several years.

The fine of the “Daniel De Noyelles property” has been uncertain and indefinite. The premises of which plaintiffs were in possession under their lease were necessary to them in the conduct of their manufacturing business, the materials upon such premises constituting their supply for manufacturing brick and were being actually used for such purpose. On May 16, 1887, plaintiffs had upon the premises, which they claim, a planked roadway upon which to haul their materials and which was necessary to run their carts on and get clay out, and defendants went upon these premises, tore up the planks and threw them out and continued and repeated these acts for some time. At the same time defendants claimed the right to take possession of plaintiffs’ premises and to remove the materials therefrom and they forbade plaintiffs taking such materials and threatened to get men there and maintain forcible and continued possession.