Opinion
06-27-1889
TRIMMER v. PENNSYLVANIA, P. & B. E. Co.
C. H. Beasley and G. M. Robeson, for complainant. Lewis J. Martin, James F, Conklin, Henry S. Harris, and Leon Abbett, for respondent.
Motion for injunction on order to show cause.
C. H. Beasley and G. M. Robeson, for complainant. Lewis J. Martin, James F, Conklin, Henry S. Harris, and Leon Abbett, for respondent.
BIRD, V. C. Trimmer has an order on the defendant to show cause why it should not be restrained from proceeding with the construction of its road, notwithstanding it has had his land condemned, and has tendered to him the amount of the condemnation money, which he refused to accept; and has, upon such refusal, paid the money into court according to the statute.
1. Upon a full consideration of the case, I am satisfied that Trimmer has an adequate remedy at Jaw. He relies, for the support of his bill, upon the allegation that a former company, while owner of the same franchise, had the same lands, to the extent of two-thirds, condemned, and an award made, which award he refused to accept, and, this being so,—that is, having been once adjudicated,—the parties and their privies are bound thereby. If this be all true, it raises no special ground for equitable relief. An estoppel by judgment can be pleaded as well at law as in equity. But, while this was admitted on the argument, it was said that the law court before which these parties are litigating with respect to the rights involved in the bill now before me, refused, upon application for that purpose, to grant an order restraining the defendant from proceeding with its work until the rights of the parties, arising out of this issue, shall have been determined. Thus it appeared that the court of law which has jurisdiction of the subject-matter, and to which Trimmer appealed for aid, has exercised its discretion; and this discretion, 1 understand, cannot be reviewed or interfered with by a court of equity, unless there be some new fact presented creating an equity which gives to chancery exclusive jurisdiction. Courts of equity, no doubt, often aid courts of law by restraining the actions of parties until the latter courts are ready to pronounce judgment, and to settle the rights of the parties; but such interference is only in case the mischief threatened will, if executed, be irreparable, and the law court has not the power to protect the right so threatened pending the controversy. The fact that such court having the power refuses to exercise it, affords no sufficient excuse for the interposition of this court.
2. But there is no sufficient proof of the alleged former award. The only evidence of it is the unsupported affidavit of Trimmer. This, I think, is not enough. If there was such an award, it is binding upon all like a judgment or decree, and must be regarded as such. It is a record, and speaks for itself, and can be proved only by itself. If in existence, it must be produced, or an exemplified copy properly certified; if not in existence, its loss must be satisfactorily accounted for before what such record was can be proved by parol; and when such proof of loss is adduced, then oral evidence may be offered to establish the contents. But such record must be thus produced or established. As I have said, there is nothing in this case to show that there was any award, except the unsupported testimony of Trimmer. He simply says that there was an award to him of $3,485. He does not even say that it was in writing, or that it was signed, or that it was filed with the clerk of the court, or that, being signed, it was destroyed before so filed. With no other proof, I am greatly in error if there is anything in the case to justify me in regarding this branch of the case as established. That the record must be produced by the party relying on it, see Freem. Judgm. §§ 407,410; Wells, Res Adj. § 201; 1 Greenl. Ev. § 501.
3. But the testimony offered by the complainant leads me to the conclusion that, if there ever was such an award, he regarded it as abandoned, and treated it as so abandoned. He claimed all the land as his own, and treated it as such. He does not set up in his bill the said former award, and offer to accept that as part compensation, as he was bound to do if such award was legal and binding upon all parties, except as to the amount which might be the subject of review; but distinctly says that that award he refused to accept. But he, in no sense, claims any benefit or rights under that award, except the naked right of estoppel. The former company which procured the former award to be made, he says, entered upon his land, and constructed a pier for a bridge; and now, before the commissioners last apappointed, whose action he seeks to annul, he claims the value of the stones in that pier and was allowed therefor the sum of $1,800, their estimated value. If that former awardbe binding and effectual, so that it operates as an estoppel, then the defendant is entitled to the land so condemned, and Trimmer to the money named in the award, and more if he could get it before the proper tribunal, according to the provisions of the statute. But, clearly, his allegations of a former award are inconsistent with his claim of all this land, and the stone so placed thereon by the former company.
4. But his last conclusion rest upon the view that there was a valid and binding award; but, if the award was not valid and binding upon the complainant, it was not upon any one; and how can this vital question be determined in the absence of the record or award itself? Hence the very great importance of the rule that judgments can only be proved by their production. I will advise that the order to show cause he discharged, with costs.