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of equity will exercise its powers should a court of equity disregard to require the plaintiff to remove wholly the injury which granting the wall, and contends that this ques- relief to the plaintiff will cause the tion should be resolved in the af- defendant, and issue the injuncfirmative.

tion? Or, should it balance the inThe defendant and appellant

and appellant jury which its course will cause in Bradley asked for affirmative relief granting or in withholding relief, by way of mandatory injunction to and be influenced by this consideracompel the removal of the encroach- tion in its decision?

It ment. Had he not done so the is- should be premised in the beginning sues in this suit would have been that the question cannot arise exlimited to those concerning the title cept in a case in which some sufto lot 8. His contention is, in sub- ficient reason for equity jurisdicstance, that, as the owner of lot 8, tion, such as irreparable injury or he may properly invoke the juris- the prevention of a multiplicity of diction of a court of equity, as a suits, exists; in other cases, the inmatter of right, to compel the re- junction will be refused on the simmoval of the encroachment, since ple ground that the legal remedy legal remedies are not adequate to is adequate. give full relief. See Hahl v. Sugo, "Assuming, then, that the only

, 169 N. Y. 109, 61 L.R.A. 226, 88 question before the court is the proAm. St. Rep. 539, 62 N. E. 135. priety of balancing the injury that The question thus presented is one may be caused to the parties by the that is not free from difficulty. As- decree, and remembering that the suming an encroachment and the question does not arise except when inadequacy of legal remedies to equity has jurisdiction of the case reinstate the owner in possession because the plaintiff's legal remedy and enjoyment of his property, it is inadequate, it should be noted that would seem that equity should af- to deny the injunction is (1) 'to ford the necessary relief, and that allow the wrongdoer to compel inthe principle of the balance of in- nocent persons to sell their right at convenience, applicable generally to a valuation' (Tucker v. Howard, 128 temporary injunctions, should have Mass. 361), and (2) to refuse him no application where equity is called altogether any equitable relief in a upon to vindicate a clear legal prop- case where, on the ground of avoiderty right. However, we are of ing a multiplicity of suits at least, the opinion that the best-considered he is clearly within one of the cases and the weight of authority most frequently given reasons for support the proposition that equity assuming jurisdiction, and where, will not interfere by granting a also, his injury may be irreparable.

mandatory injunc- In view of the situation it is clear Injunctionmandatory to

tion in such a case, that the plaintiff's prayer will not

even to vindicate a readily be denied, and it can safely clear legal right, where the defend- be said that the argument based on ant is innocent, and where a greater the balance of injury to the defendinjustice will be done by compelling ant will be availing only in a limited a removal than by awarding dam

class of cases. On the other hand, ages for what is in reality a compen- it is a general rule of equity not sable injury. On this subject Pome- to exercise its extraordinary jurisroy in his work on equitable reme- diction when it will operate inequidies (5 Pom. Eg. Jur. 2d ed. $ 1922), tably and oppressively. Starkie v. says:

Richmond, 155 Mass. 188, 29 N. E. If a defendant's build- 770. The problem presented is, ing encroaches slightly on the plain- therefore, to strike a medium rule tiff's land, and the plaintiff's dam- between these principles that, as age is small, while the cost to the fairly as may be, will do justice.” defendant of removing it is great, The author then calls attention to

remove wall.

(- N. D. —, 197 N. W. 885.) the fact that the question has arisen Co. 101 N. Y. 98, 54 Am. Rep. 661, most frequently in Massachusetts 4 N. E. 536. But in equity, in orand New York, and quotes from der to do full justice between the the decisions in those states to show parties, the plaintiff is awarded that the principle applied is sub- such full compensation as will make stantially the same in both. For in- him whole, and the defendant is stance, in the case of Lynch v. Union given the opportunity to pay the Inst. for Sav. 159 Mass. 306, at page same, instead of taking down his 308, 20 L.R.A. 842, 34 N. E. 365, wall. The plaintiff cannot be perthe court says:

Where, by mitted to both receive the value and an innocent mistake, erections have keep the land. He has preferred to been placed a little upon the plain- seek the equitable interposition of tiff's land, and the damage caused to this court, and he must himself do the defendant by the removal of equity." them would be greatly dispropor- For other cases where the granttionate to the injury of which the ing or withholding of a mandatory plaintiff complains, the court will injunction to compel the removal of not order their removal, but will an encroaching wall was determined leave the plaintiff to his remedy at by the equitable consideration of law.”

comparative injury to an innocent And again, quoting from the su- defendant balanced against the preme court of New York in the plaintiff's injury, and where relief case of Goldbacher v. Eggers, 38 was denied, see Harrington v. McMisc. 36, 43, 76 N. Y. Supp. Carthy, 169 Mass. 492, 61 Am. St. 886, we find the principle stated Rep. 298, 48 N. E. 278; Methodist as follows: “It must be remem- Episcopal Soc. v. Akers, 167 Mass. bered that a wilful trespasser can- 560, 46 N. E. 381; Mercantile Linot in this way acquire an inch brary Co. v. University of Pennsylof land, because the mandatory in- vania, 220 Pa. 328, 69 Atl. 861; junction must issue as to him; that Crocker v. Manhattan L. Ins. Co. 31 in other cases, where the injury Misc. 687, 66 N. Y. Supp. 84, id. 61 to the plaintiff is irreparable, the App. Div. 226, 70 N. Y. Supp. 492; mandatory injunction will issue, Coombs v. Lenox Realty Co. 111 Me. and permanent damages will not be 178, 47 L.R.A.(N.S.) 1085, 88 Atl. awarded; that where the granting 477. See also note in 14 A.L.R. of an injunction would work greater 831. damage to an innocent defendant In the case at bar the encroachthan the injury from which the ment was due to an innocent misplaintiff prays relief, the injunc. take as to the boundary line, and tion could be refused absolutely, and the plaintiff compelled to seek his building was erected upon lot 8.

was not discovered until after the remedy at law. In such case the plaintiff would have to proceed

The property is located in a small either in ejectment, where the sher- town, where there is little, if any, iff might not consider it his duty to

growth in population and business deliver possession by taking down activity. The encroachment is upon the wall (Bowie v. Brahe, 4 Duer,

a lot that had long been vacant at 676; Baron v. Korn, 127 N. Y. 224,

the time of the trial of this action, 228, 27 N. E. 804), and it would be and which in all probability will conimpracticable, if not impossible, for

tinue vacant for a long period of the plaintiff to regain actual pos

time. Its value does not exceed session of the strip occupied by the $250. Hence, the damage to the wall, or by successive actions for

owner is exceedingly small as comthe continuing trespass, where dam- pared to the cost of removing the ages only could be awarded to the encroaching structure. We are of time the action was commenced the opinion that, in these circum(Uline v. New York C. & H. R. R. stances, the mandatory injunction

at law.

should not issue. However, we are $125, upon condition that the said

further of the opin- defendant file in the court below a -denial-remedy ion that the defend- conveyance of the strip occupied by

ant Bradley, who plaintiff's wall, embodying therein asked only for a mandatory injunc- a release of all damages on account tion, should not be compelled in this of the trespass. In default of the action to part with title to the strip payment of the $125 on the condioccupied by plaintiff's wall, although tion aforesaid, within twenty days he might elect to do so upon being after the filing of the remittitur adequately compensated. On the herein, the mandatory injunction to other hand, we are of the opinion issue, and, in case of the failure of that the plaintiff in this action to the defendant to file the conveyance determine adverse claims, and who and the release aforesaid within has accepted the issues presented by thirty days after the remittitur, the defendant's answer, and who is that the judgment for damages apparently willing to pay a liberal against the plaintiff be satisfied, award of damages, should have the and the defendants remitted to their strip in dispute if the defendant re- remedy at law. covers as damages its full value. As so modified, the judgment is We are therefore of the opinion that affirmed, with costs to the respondthe judgment appealed from should ent. be modified so as to make express Christianson and Johnson, JJ., provisions to these ends. The

and Pugh, District Judge, concur. judgment, as modified, will be that the mandatory injunction prayed

Bronson, Ch. J., concurs in result. for by the defendant shall not issue, Nuessle, J., being disqualified, did but that the defendant Bradley not participate; Honorable Thomas have and recover of the plaintiff, H. Pugh, Judge of the Sixth Judias damages for the encroachment, cial District, sitting in his stead.

ANNOTATION.

V.

Mandatory injunction to compel removal of encroachment by adjoining owner.

The earlier cases on this question An owner of property who erected are discussed in the annotation in 14 a framework of posts, stringers, and A.L.R. 831. As there shown, it is a boards to protect his property from general rule that mandatory injunc- noise and odors arising on the ad. tion is a proper remedy for a land- joining property, and who unintenowner to invoke against an adjoining tionally located the structure on the owner, to compel the removal of struc- land of the adjoining owner, was entures which encroach upon complain- jointed from maintaining it, in Metroant's land.

poulos MacPherson (1922) 241 It is stated, obiter, in Trunnell v. Mass. 491, 135 N. E. 693. Tonole (1922) 104 Or. 628, 208 Pac. As shown in the earlier annotation, 583, that, as between the original par- although mandatory injunction is a ties, if, by mistake, one erects his proper remedy to compel removal of building on the land of another, the encroaching structures, the court will landowner, on his part, may by man- not always grant the remedy. datory injunction compel the removal Mandatory injunction was refused of the building.

in Rothaermel v. Amerigo (1922) 55 The right to a preliminary injunc- Cal. App. 293, 203 Pac. 833, to compel tion directing the removal of a side- the removal of the foundation footwalk which encroached on complain- ings of a wall which extended onto ant's lot was denied in Nebeker v. the adjoining property to the extent Berg (1921) Del. Ch. -, 115 Atl. of 13 inches, where the adjoining owner suffered no damage from the possible to enforce because of the encroachment, and his grantor had proximity of the wall on complainant's recovered judgment against the en- property to the encroaching wall. croaching owner in an action in eject- See the reported case (OWENSON v. ment, a judgment which it was im- BRADLEY, ante, 1296). W. A. E.

JAMES DAVIS

V.
NEW ORLEANS PUBLIC BELT RAILROAD.

Louisiana Supreme Court (In Banc) - June 30, 1923.

(- La. — 99 So. 419.)

Municipal corporation liability for injury inflicted in operation of belt

railroad. A municipal corporation which, under statutory and constitutional authority, assumes the duty of operating a public belt railroad through a commission, acts in its private, and not its governmental, capacity, so that it is liable for injuries negligently inflicted in the operation of the road.

[See note on this question beginning on page 1306.]

APPLICATION by plaintiff for a writ to review a judgment of the Court of Appeals affirming a judgment of the District Court for the Parish of Orleans in favor of defendant in an action brought to recover damages for the killing of plaintiff's son by defendant's train at a street crossing. Judgment set aside.

The facts are stated in the opinion of the court.
Messrs. Edward Rightor and Walter the defendant's employees

employees were L. Gleason for applicant.

guilty of negligence, and that there Messrs. William McL. Fayssoux and should be a recovery but for the McCloskey & Benedict for respondent.

character of the defendant; hence Dawkins, J., delivered the opinion the only question which we of the court:

called upon to determine at this Plaintiff alleges that his son was time is as to whether the defendant killed by a train of the defendant is liable for a tort under circumat a street crossing in the city of stances such as are disclosed by this New Orleans. Defendant excepted record. upon the ground that the petition We found in the case of Jones v. disclosed no cause of action, for the New Orleans, supra, that the perreason that it was a governmental son for whose act the city was agency, and not liable for tort. The sought to be held liable was, at the trial court referred the exception time, a duly appointed police officer to the merits, but sustained it after of the city of New Orleans, astrial upon the authority of Jones v. signed to guard the property of the New Orleans, 143 La. 1074, 79 So. Public Belt Railroad, which is not a 865. The court of appeals affirmed separate municipal corporation, but that judgment, and the case is now a specially created department of before us for review.

the city intrusted with the operaIn his reasons for judgment, the tion and control of the Public Belt district judge found as a fact that Railroad System. Therefore the said officer was clearly acting as an fore, or may hereafter be, estabagent for the discharge of the gov- lished by the city of New Orleans, ernmental duties of the city, out of the title and use to which said Pubwhich, according to all authority, lic Belt Railroad System shall be no liability in damages can arise. and shall forever be in the people It was unnecessary, under that find- of the city of New Orleans." ing of fact, to determine the ques- Section 7 further provided "that tion of what the rights of the par- the city of New Orleans shall conties would have been, had the agent struct, equip, maintain and operate been discharging any ordinary duty said Public Belt Railroad System of connected with the operation of the the city of New Orleans through railroad system; and what was said and by means of such board or comupon that point must necessarily be mission, as may have been or may considered as obiter.

be organized by the city of New We shall not go into the matter of Orleans, the members of which whether, if the board of port com- shall be appointed by the mayor of missioners should find it necessary the city of New Orleans, with the to take over and operate the rail consent of the council, the powers, road system to insure the payment duties and functions of which shall of the bonds, it would be liable for be prescribed by the city of New a tort; it will be time enough to de- Orleans.

The control, adtermine that question when and if ministration, management, and susuch an issue should arise. We pervision of the construction, mainshall confine ourselves to the ques- tenance, operation, and develoption of liability of the city, through ment of the Public Belt Railroad of the public railroad belt commission, the city of New Orleans shall be exunder the facts of this case.

clusively vested and remain in such The city of New Orleans, on Oc- board or commission, which shall tober 8, 1904, by its Ordinance No. always be separate and distinct 2683, New Commission Series, cre- from that of any railroad entering ated the belt railroad commission, the city.

And said Public and made an appropriation of $40,- Belt Railroad System shall be and 000 for its operation. The purpose remain the sole property of the of creating this commission was to people of the city of New Orleans provide a system

system for handling at all times, and shall in no way freight in railroad cars between or manner ever be hypothecated, different points within the city for

provided, however, that the its convenience and that of its in- revenues of said Public Belt Railhabitants, and to establish uniform road of the city of New Orleans, charges for that service. In 1908 after the deduction of expenses of the legislature passed Act No. 179, maintenance and operation, shall be authorizing the city of New Orleans and remain pledged for the payto issue certain bonds for the pur- ment of the bonds in principal and poses of the public belt railroad interest, the issue of which is herecommission which the said city in authorized; to such extent as "may heretofore have organized, or may be necessary under this act." may hereafter organize

the By an amendment to the Constipowers, duties, and functions of tution submitted and adopted in which shall be prescribed by the 1916 (see Amendments to Const. p. city of New Orleans ;” and in § 6 16), the city of New Orleans was of said act it was further provided granted "plenary and

and exclusive “that there shall be and there is power, by such means and methods hereby irrevocably dedicated to the as it may deem meet and proper people of the city of New Orleans not in conflict with the provisions for perpetual and exclusive public of this amendment," to build and use said Public Belt Railroad Sys- operate bridges and tunnels across tem, as the same has been hereto- the Mississippi river, with all ap

.

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