Water-Lot Co. of Columbus vs. Bucks and Winter. because of laches in presenting the application, of acquiescence in the things complained of, until their full completion and enjoyment by the defendants. 5. Because the complainant does not make such a case by his bill as will justify a Court of Equity to interfere by injunction, and in support of the foregoing positions, cites the following authorities: 2 Story Eq. Ju. sec. 901, 926, 7, 8, 9, 959. 2 Ves. & B. 302. 3 John. Rep. 566. 16 Ves. 338, 242. 2 Swanston, Ch. Rep. 336. 10 Ves. 193. 2 Brown, Ch. Rep. 64. 1 lb. notes to page 588. 7 Ves. 305. 13 Ib. 326. 17 Ib. 281. 18 Ib. 515. 19 Ib. 143. Drury on Injunction, 260, 190, 294. Edm. do. do. 212, 214, 112, 113. 3 Paige, 213, 254. 8 Ib. 315. 6 John. Ch. Rep. 46, 496. 1 Ib. 274, 318, 370. 7 Ib. 315. 5 Ves. 688. 3 Cowen, 445, 505. 6 Eng. Ch. Rep. 7. 11 Ib. 392. 29 lb. 127. 4 1 Mylne & Craig, 480, 481. 1 Tann. and RusAngel & Ames on Corporations, 274. 5 Porter, 299. Simons R. 13. sell, R. 18. By the Court.- LUMPKIN, J. delivering the opinion. [1] The water-lot company of the city of Columbus, on the 16th February, 1847, conveyed by deed to defendant, Wm. Brooks, a piece of ground at the South-West corner of the canal of said company, constructed in the bed of the Chattahoochee river, for supplying water to the water-lots of Columbus. The grant of said piece of ground was subject to the condition, that the purchaser should be "confined and restricted to the privilege of erecting and running a saw-mill, or saw-mills, on said lot." The company presented their bill of complaint to the Hon. ROBert B. AlexandER, Judge of the Superior Court of the Chattahoochee Circuit, and prayed for an injunction against the said William Brooks and John G. Winter, who had become interested in said property, alleging, among other things, that they were the owners of other lots, so contiguous to the defendant's ground, that a large wooden building on the latter, if on fire, would endanger buildings, to be erected on their said lots. That a fireproof building was not required by them, on said piece of ground, nor were the defendants restricted to any particular number of stories, in the building to be constructed thereon, for reasons set forth in the bill. That shortly after said conveyance, the defendants proceeded to erect a large wooden building, three stories Water-Lot Co. of Columbus vs. Bucks and Winter. To dispose, first, of the second ground of complaint, in the bill. The jurisdiction of equity, in cases of trespass, is limited to such as are likely to be attended with irreparable injury. Equity expects a strong case of destruction, or irreparable mischief to be made out-of irreparable mischief which may be completely ef fected before any trial can be had at Law, as to the controverted right. Eden on Injunc. 139, and cases there cited. The principle, as to trespass, says Mr. Drewry, in his learned and satisfactory treatise on injunctions, page 133, is that injunctions will be granted, when the tresspass is of such a nature as to be actually taking away, or destroying the substance of the estate, as in the case of timber, coals, mines and quarries. 6 Ves. 147. 7 Ves. 308. 15 Ves. 138. 10 Ves. 290. 17 Ves. 128. 18 Ves. 184. The rule is, that the jurisdiction of equity does not properly extend to cases of trespass, strictly so called, and cases in which she will interpose, are considered exceptions which the English Courts are unwilling to carry further. Drewy, 133, 134. The complainants do not show themselves within any of the exceptions recognised by the English Courts, nor by the Supreme Court of the State of Georgia. 1 Kelly, 10. 1 Kelly, 10. It is not pretended that because of the "tardiness of the remedy, the peculiar nature of the property injured, the insolvency of the wrongdoers, or the inability of the complaimants to prove their damage," equity ought to interfere with her harsh but indispensable process of ininjunction, "to protect them in the use, integrity, and value of their property." The case of Deere vs. Gust, 1 My. & Cr. 516, is a strong authority against the complainant's application on the point now under consideration. The complainant, in that case, was mortgagee in receipts of the rents of an estate in Wales, and the defendants being owners of the adjacent Iron Works, desiring to construct an iron tram-road, from their works to another place, and finding it convenient to cross the mortgaged estate, obtained permission of complainant's tenant, by a false representation, that they had the consent of complainant, and accordingly laid down a tram-road through the estate, in making and keeping up which, much damage was done to the estate. The complainant had no notice of the fact for three years, but as soon as he had notice of the existence of the tram-road, he proceeded to have it taken up, in which, he was forcibly interrupted by defendant's workmen, Water-Lot Co. of Columbus vs. Bucks and Winter. and thereupon he filed his bill for an injunction to restrain the defendants from using the road, and from interrupting the complainant and his workmen. The defendant demurred, and the demurrer was allowed. The Lord Chancellor Cottenham said, in giving judgment, "the thing here complained of has been done. The tram-road has been completed, with the leave of the tenant in possession, and the Court is asked to restrain the defendants, who, having finished the work, are now in the daily use and occupancy of it. In other words, the Court is virtually asked to eject the defendants, and authorise the complainant to take possession. The case originally, may have been a case of waste-waste occasioned by the cutting of the tram-road, and the laying of the iron rails over the complainant's land; but what is now claimed by the defendants, is simply right of way, and if they are not entitled to that right, they are mere trespassers, and the complainant has his proper legal remedy against them, as such." In the case before us, has not the thing complained of been done? That is to say, have not the defendants already erected their building, or a part of it, on the land of the complainants? and is not the Court virtually asked to eject them, and put the complainants in possession? It seems, then, more consistent with the precedents, to leave the complainants to their appropriate remedy at law, in respect to this ground of complaint. Upon the other and first ground-as to the power of this Court to interfere by injunction, to restrain breach of covenant, in the nature of a specific performance. Injunctions of this sort, are usually of two kinds, (Eden on In. 22,) both of which concern and seem to depend upon the relation of landlord and tenant, and therefore, not necessary to be further considered in the discussion of the question before us. There are a few cases which do not fall within the principles of either of the kinds referred to. The case of Martin vs. Nutkin, 22 P. W. 266, is the earliest it is said, in which Equity interfered to restrain breach of covenant by injunction. In that case, the defendants, the parson, church warden and overseers of the Parish entered into a written agreement with the complainants, that upon a certain consideration which had been performed by the complainants, the ringing of the bell at 5 o'clock, A. M. to the disturbance of the complainants, should be discontinued for the lives of the complainants, or the survivors of them. Lord Mecclesfield granted an injunction to stay the Water-Lot Co. of Columbus vs. Bucks and Winter. ringing of the bell until the hearing, and at the hearing, the injunction was continued during the lives of the complainants, and the survivors of them." It hence appears that Equity will interfere to execute a negative agreement, when according to the judgment of the Vice Chancellor in the case of Kimberly vs. Jennings, 6 Sim. 340, "it is simply such standing by itself." The case put by his Honor, the V. Chancellor, was that a nephew, wishing to go on the stage, his uncle gave him a large sum of money in consideration of his covenanting not to perform within a particular district; that the Court would execute such a covenant, on the ground, that a valuable consideration had been paid for it. The decision in the case of Barrow vs. Richard, reported in Paige's C. R. vol. 8, p. 351, insisted upon by complainant's counsel, as an authority applicable to the case before us, would seem to go also, upon the same principle, the right of Equity to restrain breach of agreement. The doctrine of specific performance in reference to breach of agreement by injunction, is subject to the qualification, that unless it appears that specific performance of the whole agreement can be decreed, the relief will be denied; and if the agreement is negative, it will be decreed to be performed only when it stands by itself, not connected by a positive agreement which the Court cannot enforce. 6 Sim. 340, 333. And it is to be observed that in all the cases of this class in which relief was granted, the agreement was a simple obligation, not to do a particular thing, as in Martin vs. Nutkin, and where the injunction may be said to have compelled its performance in a negative sense, by restraining its violation. The decision in the case of Morris vs. Coleman, 18 Ves. 407, which at first view seems an exception, is treated by Sir L. Shadwell in his judgment in Kemble vs. Keen, 6 Sim. 333, as grounded on the consideration of there being a partnership between the contracting parties. In the case before us, it is not the agreement that defendants shall not do a particular thing, but to do only a particular thing. The prayer of the bill, is not that the defendants be compelled to do an act, erect and run a saw mill, or saw mills, but that they be restrained from doing other things, the running a variety of other machinery. In the literal sense of the terms, we cannot effect, by injunction, a special performance of this agreement, according to the prayer of the bill. How far the principle of the decision the case of Martin vs. Nutkin, and in the case of the Uncle vs. Water-Lot Co. of Columbus vs. Bucks and Winter. the Nephew, cited in Kimberly vs. Jennings, is applicable to this, is not necessary to be determined, since a more satisfactory disposition can be made of it on other grounds. Conceding, then, for the present, the point of jurisdiction and the right of the Chancellor to interfere by injunction to restrain the breach of covenant in a case properly submitted, we are to inquire, do the complainants come with such a case, and in proper time to claim this extraordinary interposition of Equity. The bill alleges that the defendants have violated their agreement, in that they have placed, and are now running, in addition to a saw mill on said lot, a large amount of machinery for a variety of purposes, none of which forms any part of a saw mill or saw mills. No injury is shown to have resulted or likely to result to the complainants from the mere employment of the additional machinery, and the only benefit to follow to the complainants upon the injunction against its employment upon said lot, consists in the chance of selling in that event to defendants, another lot at a reasonable price. The defendants have already placed, and are now running on the ground the large amount of machinery complained of. The consequence to them, will probably be a serious pecuniary loss to be estimaed, it is true, only by reference to the great variety and expensiveness of their machinery, as enumerated by complainants in their bill. The complainants stood by while their rights were infringed, and " after the thing complained of had been done," in the language of Lord Cottenham already quoted, they come to claim the aid of Equity to restrain the defendants. In the case of Brydges vs. Kilburn, cited in Jackson vs. Carter, 5 Ves. 688, 691, in which a lessee having altered a log wood mill into a cotton mill, an application for injunction was refused, on the ground that the complainant had stood by, and seen the cotton mill erected; and in a late case, Lord Brougham refused an injunction even against waste, on the same ground. The language of his lordship is emphatic and decisive. "I am equally clear that the party complaining, has in this instance, by his own conduct, disentitled himself to relief. If there be any thing well established in this Court, it is, that a man who lies by while he sees another expend his capital, and bestow his labor upon any work without giving him notice, or attempting to interrupt him-one who thus acquiesces in proceedings inconsistent with his own claims, when he comes to enforce those claims in this Court, shall in vain ask for 66 |