Opinion
No. 38320.
March 17, 1952.
1. Injunctions — solicitor's fees — final decree.
When a bill for injunction is fully heard upon its merits a decree thereon is a final decree and there is retained no right to inject the issue of solicitor's fees, especially where there was no motion to dissolve and where the chancellor treated his decree as being final on the merits.
2. Injunction — nuisances — domestic animals and fowls.
There is no fixed standard whereby a nuisance may be measured or adjudged, but the permitted invasion of the premises of the complainant by the domestic animals or fowls of the defendant may be a nuisance and enjoined as such if found of a substantial character or its creation or continuance is threatened; and it is immaterial that such marauders are not within the general stock law statute. Sec. 4864 Code 1942.
3. Injunctions — nuisance — parties.
An injunction against the nuisance of invading animals and fowls should not issue against those who neither owned nor controlled the annoying agencies and it is no answer that one so enjoined suffers no injury or runs no risk of citation for disobedience, nor may such restraint be laid upon the insecure ground that for all complainant knows the person enjoined may in the future acquire such an animal or fowl.
4. Injunctions — nuisances — parties.
Where the evidence shows that one only of the defendants owned or controlled the invading animals or fowls mentioned in the foregoing headnotes, the injunction may issue to that defendant only and the suit will be dismissed as to all the others.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Copiah County; J.F. GUYNES, Chancellor.
Arrington Arrington, for appellants.
I. The final decree in this cause was improperly entered on the preliminary hearing in the absence of any agreement to treat the preliminary hearing as a final one, or as if on a motion to dissolve. Griffith's Mississippi Chancery Practice, 2nd Ed., Sec. 445; Sec. 1348 Code 1942.
II. The injunction was issued against appellants Lelia White, Jack Handy, Phebia Handy and Thelma Handy jointly, and such was error as no livestock, chickens or dogs were owned by defendants jointly and there was no showing that the appellants had conspired to throw rubbish on the Lewis property. 2 Am. Jur., Animals, Sec. 118 p. 780; Southern Bus Lines v. Amalgamated Ass'n., etc., 38 So.2d 765; Globe Rutgers Fire Ins. Co. v. Firemen's Fund Ins. Co., et al., 97 Miss. 148, 52 So. 454; State ex rel. Rice v. Hasson Grocery Co., 177 Miss. 204, 170 So. 234, and cases cited therein; Curphey Mundy, et al. v. Terrell, 39 So. 477.
III. The final decree and injunction issued thereon erroneously perpetually enjoined the appellants from trespassing upon the lands of the appellees by allowing their chickens and dogs to trespass thereon for the reason that neither chickens nor dogs can commit a trespass. Mitten v. Faudye, Popham, 161, 79 Eng. Reprint 1259; Mason v. Kelling, 1 Ld. Raym. 606, 91 Eng. Reprint 1305, 12 Mod. 332, 88 Eng. Reprint 1359; Halsbury's Laws of England, (2nd Ed.), Vol. 1, Sec. 972; 2 Am. Jur., Animals, Secs. 105, 120, 689; Baker, et ux. v. Howard County Hunt, (Md.), 188 A. 223; The Vicksburg and Jackson R.R. Co. v. William L. Patton, 31 Miss. 156; Tate v. Ogg, (Va.), 195 S.E. 496; Kimple v. Schafer, et al., (Iowa), 143 N.W. 505; Evans v. McLalin, (Mo.), 175 S.W. 294; Coffman v. Martin, (Tex. Cov. App.), 167 S.W. 22.
IV. The final decree erroneously perpetually enjoined the appellants from trespassing upon the lands of the appellees by allowing their domestic animals to trespass thereon, inasmuch as the words "domestic animals" embrace a large category of animals and there is no proof in the record to indicate that any animals, other than those enumerated had entered upon the lands of the appellees, or that such an entry was threatened in the future.
V. The injunction was erroneously issued against appellants for the reason that the evidence failed to show that there was any irreparable injury to the property of the appellees resulting from the trespasses of the hogs and pigs of appellants; and further failed to show that the injury, if any there was, was substantial and irreparable or that there was a reasonable probability that an injury, real and irreparable, would occur or would continue to occur. 28 Am. Jur., Injunctions, Secs. 24, 144; Moore v. Halliday, 43 Or. 243, 72 P. 801; Tate v. Ogg, (Va.), 195 S.E. 406.
VI. The injunction was erroneously issued against appellant Lelia White for the reason that the proof failed to show any grounds for enjoining Lelia White. 28 Am. Jur., Injunctions, Sec. 297.
VII. The injunction was erroneously issued against appellant Thelma Handy for the reason that the proof failed to show any grounds for enjoining Thelma Handy.
VIII. The injunction was erroneously issued against appellant Jack Handy for the reason that the proof failed to show any ground for enjoining Jack Handy.
IX. The injunction was erroneously issued against appellant Phebia Handy for the reason that the proof failed to show any ground for enjoining Phebia Handy.
X. The learned chancellor below erred in dismissing the bill of complaint as to Joe White upon motion of appellees after he had orally rendered his decision at the conclusion of argument, enjoining all five of the defendants, Joe White included. Griffith's Mississippi Chancery Practice (2nd Ed.), Sec. 621; J.M. Phillips v. Ralph Wormley, 59 Miss. 398; Adams, et al. v. Lucedale Commercial Co., et al., 113 Miss. 608; Canadian American Mortgage Trust Co., Ltd., v. A.F. Fitzpatrick, et al., 71 Miss. 347; People's Bank in Liquidation v. Pennington, 103 So. 144; Daniell's Chancery Practice, p. 793, (5th Am. Ed.); Bank v. Rose, 1 Rich. Eq. (S.C.) 294; Conner v. Drake, 1 Ohio St. 170; A.J. Jamison, et al. v. J.N. Dulaney, et al., 74 Miss. 890.
XI. The fixing of the bond at $500.00 over protest of counsel for appellants without further inquiry as to cost and damages, was arbitrary and unlawful in that it precluded appellants from recovering their full damages in the event the injunction be dissolved.
XII. That it was error for the honorable chancellor below to tax all costs in the cause against the four appellants after the appellees dismissed as to Joe White; under such circumstances, one-fifth of said costs being properly taxable against appellees. Henley, Jones Woodliff, for appellees.
I. The case was tried on its merits and final decree was entered.
II. There was no misjoinder of parties in this suit. Montgomery v. Handy, 62 Miss. 16; 43 C.J.S., p. 830.
III. Both chickens and dogs are subject to law with respect to trespass.
A. Dogs. Baker v. Howard County Hunt, 171 Md. 159, 188 A. 223, 107 A.L.R. 1312; Hodges v. Causey, 77 Miss. 353, 26 So. 945.
B. Chickens. 3 C.J.S., p. 1290; Adams Bros. v. Clark, 222 S.W. 1046, 189 Ky. 279, 14 A.L.R. 738; McKee v. Trisler, 311 Ill. 536, 143 N.E. 69, 33 A.L.R. 1298.
IV. The injunction in this case is not too broad.
V. Complainants established irreparable damage. Tate v. Ogg, 195 S.E. 406; Moore v. Halliday, 43 Or. 243, 72 P. 801; 3 C.J.S., p. 1232; Coleman v. Hallum, (Tex. Comm. App.), 232 S.W. 296, reversing Hallum v. Coleman, (Civ. App.), 214 S.W. 989; Kimsey v. Mickel, 191 Ga. 158, 12 S.E.2d 567; Rosenblatt v. Escher, 184 Miss. 274, 185 So. 551.
There is here involved the right to an injunction against an adjoining landowner and resident to forbid the invasion of domestic animals and fowls, to the detriment of complainants and their right to peaceable enjoyment of their property. The complainants are the owners of varying estates in the subject lands and the defendants are alleged to own or occupy the land from which the destructive or obnoxious invasions proceeded. Injunction was granted against Lelia White, Jack Handy, Thelma Handy and Phebia Handy. One Joe White whose complicity in the maintenance of the nuisance was intimated by the chancellor, was excluded by complainants from the restraint imposed by the decree, but joined in the appeal upon the theory that such exclusion denied him any right to damages in the event the decree should be held to be a temporary injunction and should be dismissed upon a motion to dissolve. This point we decide at once since further reference will not be necessary.
(Hn 1) When a bill for injunction is fully heard upon its merits a decree thereon is a final decree and there is retained no right to inject the issue of solicitors' fees. This is especially true where there was no motion to dissolve and where the chancellor treated his decree as being upon the merits and a final decree. Capital Electric Power Ass'n v. Franks, 199 Miss. 226, 23 So.2d 922; Smith v. Young, 199 Miss. 658, 24 So.2d 746, 25 So.2d 136. The principle applies even though the bill prayed for temporary and permanent injunctions. The decree excluding Joe White from its provisions was, therefore, not prejudicial but favorable to him.
Appellants urge that there was insufficient evidence both as to the ownership of the respective animals and fowls and the fact of substantial damage to complainants' enjoyment of their land.
The so-called trespasses were alleged to have been committed by hogs, dogs, chickens and turkeys whose presence upon the property of complainants was not only annoying but created obnoxious incidents. Depredations were testified to have been caused by hogs and fowls. The dogs were accounted as being nonconducive to quietude and rest, and upon occasion a menace to safety and health. The casting of garbage near the boundary of complainants' land was included in their grievances. This element is at most a mere make-weight, since only one occasion was disclosed in which a small pile of trash, broken glass and empty cans were discovered almost by inadvertence and the responsibility therefor fixed only by surmise. (Hn 2) It is not necessary to debate whether dogs and chickens may attain the status of trespassers. It is enough that their presence and actions created a nuisance, and it is immaterial that such are not included within the terms of Code 1942, Sec. 4864. There is no fixed standard whereby a nuisance may be measured or adjudged, if it be not de minimis. Moreover, an injunction should not be granted except when a substantial nuisance of a continuing character is found or its creation or continuance threatened. Excluded from this category would be the incident of the garbage, which was promptly abated without threat of repetition. (Hn 3) Further yet, the coercive power of this extraordinary writ should not encompass those who neither owned nor controlled the annoying agencies. It is not a sufficient answer that one so enjoined suffers no injury and risks no citation for disobedience, if in fact he was in no degree responsible for the motley host of aggressors or any of them. Such restraint may not be laid upon one upon the insecure ground that, for all the complainant knows, he may in the future acquire a marauding or vagabond domestic beast or fowl.
(Hn 4) There is no testimony that at the time of the decree, either Jack or Phebia Handy resided upon the land from which base these foraging sorties were launched. Thelma Handy was shown to own none of the objectionable miscreants. Only Lelia White was shown to own any hogs, dogs or chickens. The extent of her estate in these chattels was somewhat in contrast to the allegations of the bill and was subjected to conflicting views, not only as to the degree to which their cumulative annoyance attained, but also as to whether there was in fact any vexation at all, especially in view of the uncertainty as to identification of any as belonging to Lelia White.
We would not belittle the right of a landowner to an undisturbed enjoyment of his land. There was sufficient testimony to justify the learned chancellor in his finding that the nature and extent of vexation by itinerant animals and fowls was sufficient to draw unto complainants the process of the court. We are without power to designate categorically the degree of harassment below which a complainant becomes guilty of an abuse of process. Each case supplies its own test. In accord with the foregoing views, we find that the injunction was rightfully allowed against Lelia White, except as to the matter of garbage disposal, but should be dismissed as to all the other defendants. Costs herein will be adjudged upon the basis of one-fourth against Lelia White and three-fourths against the appellees.
So ordered.
Roberds, Hall, Kyle and Ethridge, JJ., concur.