Leach v. Day

By the Court, Sanderson, C. J. We deem it unnecessary to determine whether the road laws of this State are unconstitutional so far as they authorize the laying out and establishing of private roads. It is not necessary to determine that question in order to finally dispose of this action. All that the plantiff claims on that score may be conceded without its following therefrom that he is entitled to the relief which he seeks. Admitting that the Act of the Legislature empowering the Board of Supervisors to lay out and open private roads is unconstitutional, and that therefore their acts in laying out and opening a private road for the use of the defendant across the land of the plaintiff are null and void, it only follows that the grounds upon which the defendant seeks to justify his acts have failed him, and he stands convicted of the trespass alleged in the complaint.

Leaving this constitutional question out of view it only remains to determine whether on the case made by the complaint the plaintiff is entitled to an injunction.

The complaint merely alleges that the defendant on a day stated, and at divers other times between that day and the commencement of the action broke and entered the close of the plaintiff and did by himself and servants tear down and destroy the fences of the plaintiff to his damage in the sum of fifty dollars, for which he prays judgment. Such is the nature and extent of the trespass alleged in the complaint.

For the purpose of obtaining an inj unction the complaint thereafter proceeds and shows that the trespass in question was committed by the defendant under a pretended claim of a right of way over the plaintiff’s land by virtue of a pretended order of the Board of Supervisors, opening and establishing a private road for his use, and that the defendant threatens to tear down the plaintiff’s fences at each end of the road as often as he erects the same—wherefore he asks an injunction.

The bare statement of these facts is a complete answer to the prayer for an injunction. No reasons are given or attempted to be given why the plaintiff has not an adequate and [646]complete remedy at law ; on the contrary it is apparent, from the nature of the case stated, that he has. Where such is the case, equity will not interfere, but will leave the complainant to his action at law. The whole case made is merely that the defendant, under a claim of right, has torn down three or four lengths of he plaintiff’s fence, and threatens that he will do it again if the plaintiff puts it up. By themselves considered, the acts in question have none of those elements which lie at' the foundation of equity interference in cases of trespass. All that the defendant has done has been done under a claim of right, founded upon an order of a lawful tribunal, having, as he claims, full power and jurisdiction to make it. Whatever he threatens to do he threatens to do under the same claim of right. This being the first action which has been brought, and it appearing that the defendant is acting under a claim of right, there is no pretense for saying that he will continue his acts after a Court of law has once determined the right under which he claims to act against him. The threatened trespass is not irreparable, either from the nature of the injury itself, or from the want of responsibility in the party threatening its commission.