Lanahan v. Gahan

Alvey, J., delivered the opinion of the Court: The appellant seeks to restrain the appellee by injunction from the use of a division wall between their adjoining lots, alleging that such wall, being the northern wall of his building, is his exclusive property, and that the use attempted to be made of it by the appellee will weaken and impair it, and, at the same time, tend to destroy its exclusive character and convert it into a party wall. The appellee, on the other hand, contends that he has a right to use the wall as contemplated by him, because the same is partly located on his ground, and is not therefore the exclusive property of the appellant; and he denies that the use he was about making of the wall, being the insertion of joists for the extension of his building, would in any manner weaken or impair it, as alleged by the appellant, ' It is plain, from the very nature of the claims and pretensions of the respective parties, that the rights involved are purely legal rights, and such as should be determined by a Court of law, and not by a Court of equity. The proper office of a Court of equity, as said by Lord Oottenham, in the case of Harman vs. Jones, 1 Cr. & Phil., 301, upon applications of this kind, is not to ascertain the existence of a legal right, but solely to protect the property until that right can be determined by the jurisdiction to which it properly belongs; and this protection will only be given in cases where .the mischief threatened or impending is likely to be ruinous or irreparable. An injunction is never granted to restrain a mere trespass, where the injury is not destructive and irreparable, but is susceptible of perfect pecuniary compensation by action at law.

Jerome vs. Ross, 7 John. Ch. Rep., 315. The ¹⁰⁷ doctrine of Courts of equity upon this subject is briefly but fully stated by the Master of the Rolls, in the case of Hilton vs. Granville, 4 Beav., 130, which was an application to have the defendant .restrained from so working his mines as tp injure or endanger the foundations of the plaintiff’s house He said: “The rights asserted on the part of the plaintiff and of the defendant are legal rights ; and the plaintiff, asking for the assistance of a Court of equity to protect him from a violation