Opinion
No. 4848.
Submitted October 4, 1960.
Decided October 28, 1960.
1. A bill in equity seeking injunctive relief was properly dismissed where the bill failed to allege the lack of an adequate remedy at law and there was neither an allegation nor evidence of any threat of future trespasses likely to result in irreparable injury for which the defendants were incapable of responding in damages.
BILL IN EQUITY, to restrain and enjoin temporarily and permanently Robert G. Crothers and John Kostreles from entering premises in Greenland owned by George E. and Helen S. Tapley.
Plaintiffs' bill alleges that in the fall of 1956 they entered into an agreement with the defendants entitled "Agreement For Operation And Lease." It provided in part that "In consideration of Two Hundred . . . Dollars paid in hand . . . [to plaintiffs] the first party, owner and lessor, does hereby grant a two-year lease commencing this day, to a ninety . . . acres parcel of land in Greenland to . . . [defendants]. The parties of the second part will for the duration of the lease have the right to enter into, for the excavation of gravel etc., the said parcel . . .
"The parties of the second part shall then pay the party of the first part One . . . Cent per cubic yard for every yard of gravel dug, pit measurement, and removed from the premises . . . [and] any advance such as the Two Hundred Dollars heretofore mentioned, shall be charged off against gravel removed from the premises. After the first two years of this lease have expired, if such gravel operation proves to be profitable to the party of the second part, they will then increase the payment. . . so that it will be Two . . . Cents per cubic yard . . . .
"A monthly statement shall be sent to the party of the first part by the party of the second part, together with a check for the gravel removed. This will be done each month . . . .
"The party of the first part agrees not to do anything legally or otherwise that would have the effect of interfering or preventing the parties of the second part from carrying out its operation . . . .
"The party of the first part gives the party of the second part the right to build roads going and coming from the land and to do everything necessary to carry out the project."
Plaintiffs' bill alleges further that defendants "have violated the terms of the Agreement, in that they failed to provide monthly statements . . . together with payment for gravel removed." That on March 30, 1959, plaintiff George Tapley sent the following letter to defendant Crothers: "In view of the fact that you have not complied with the agreement which was signed with reference to the gravel located upon our property . . . because of the breach of contract upon your part, we consider that all of the agreements thereunder are terminated."
Plaintiffs further allege that after receipt of said letter defendants have continued to enter upon their premises and to remove gravel therefrom wherefore they pray that defendants be restrained and enjoined from entering the premises.
After the granting of a temporary restraining order, defendant, Kostreles, filed a motion to dismiss. Its basis was that (1) "plaintiffs have a complete and adequate remedy at law" and (2) "said bill in equity relates to a landlord and tenant situation and the plaintiff has failed to comply with the provisions of [RSA ch. 540] so far as they apply in this case."
This motion was granted, after hearing, by Keller, J., who reserved and transferred plaintiffs' exception thereto.
Sleeper Mullavey for the plaintiffs.
Shaines Brown and Seth M. Junkins for the defendants.
It appears from the allegations in plaintiffs' bill and from statements made by their counsel at the hearing on the motion to dismiss that they have always been in possession of the property in question. This tends to prove that the parties did not intend their agreement to be a conveyance to the defendants of an exclusive right of occupation of the premises which is usually what a lease conveys. Rather it seems what was intended was a contract for the sale of gravel with a license or easement to enter and remove the same for stated periods of time. 32 Am. Jur., Landlord and Tenant, s. 5, p. 30; 1 American Law of Property, s. 3.3; 1 Tiffany, Real Property (3d ed.) s. 79, p. 117. This renders doubtful the applicability of RSA ch. 540 to their relationship. However it is not necessary to decide this point for reasons hereinafter apparent.
Although not necessarily fatal under our liberal procedure, it is to be noted that plaintiffs' bill does not allege the lack of an adequate remedy at law. In argument the reason advanced for equitable relief was that an injunction should be granted to prevent a continuing trespass. However there is no allegation nor evidence of any threat of future trespasses which are likely to result in irreparable injury for which the defendants are incapable of responding in damages. Perley v. Effingham, 94 N.H. 120, 122.
"There is no rule except the rule of reason which can be applied to determine when an action at law is or is not an adequate remedy. Each case depends on its own facts . . . . "Spaulding v. Mayo, 81 N.H. 85, 87. On the record before us, the allegations of the bill and argument of counsel, we are unable to say that the Trial Court's dismissal of plaintiffs' equitable proceeding was unwarranted.
Exception overruled.
All concurred.