The Pensacola & Georgia Railroad Company and the Atlantic & Gulf Central Railroad Company, Appellants, vs. Spratt & Callahan, Appellees, 12 Fla. 26

DOUGLAS, J., delivered the opinion of-the Court: In this ease a bill was filed in the Circuit Court of Columbio county on the 3d day of April, 1867, by James W. Spratt and Daniel Callahan, asking, among other things, that the Chancellor would grant an injunction to restrain the defendants, the P. & G. R. R. Co. and the A. & G. R¡ R.

Co., from running locomotives and cars over the branch road from Live Oak Station to the Georgia and Florida boundary line, or any part thereof, or committing waste thereon, or in any way or manner using the said branch road from Live Oak Station to the Georgia and Florida boundary line, until the further order of the court.

The complainants also pray an account maybe taken of the amount due them for work and labor and materials,, and that the court would decree a sale of the said branch road to satisfy their claim and demand, when ascertained. ■ There is also a prayer for such further or other relief as the nature and circumstances of the case may require.

The material statements in the bill necessary now to b© considered are: That the said branch road from Live Oak Station, in Monday to- the Georgia boundary lmer was placed in the1 possession of the complainants by the- military authorities of the .Confederate States for the purpose ©f altering,, improving and repairing the same, under am agreement between the Pensacola & Georgia Eailroad Company and the Confederate States, This statement is denied by the answer of the P. & G. B, B.

Company, That the complainants went into possession ©f said branch road under a contract with one Minor Merriweather, a Major of Engineers in the military service of the Confederate States, and that the said Minor Merriweather then placed the complainants in possession of the said branch road by the authority of the P.. & G. B. B. Co., one of the defendants, under a contract between the P. & G, B, B. Co. and the Confederate States. This allegation is denied in the answer of the P. & G. B'„ B. Co., one of the defendants.

That the complainants entered into the possession of said road under their contract with the Confederate States,, and performed certain work and supplied materials to the amount of $37,379.60.. To this allegation of complainants the- .defendants say “ they know nothing.” The bill further states, that the complainants have a lien on each and every portion of said branch road for the payment of said sum of $37,379 60-100, and that the said lien has never been lost or surrendered by complainants. This lien is denied in the answers of the defendants. That the P. & G. R. R.

Co., without the consent of, and in violation of the rights and lien of complainants, took possession of said branch road and refused to pay the claim of complainants. To this allegation the defendants reply, denying that they took possession of said road, but that the same was turned over to them by the military, authorities of the United States, after-the close of the late civil war, and that the United States took possession of it as captured and abandoned property. That since the P. & G. R. R. Co. took possession of said road, they have sold or leased the same to the A. & G. R. R.

Co. for a consideration of many thousand dollars. This is admitted in the answers and the amount of the purchase money, and the funds in which it was paid, is fully .set forth. That the defendants are running • and using said road .to the detriment in value of the same, and to the injury of-the lien, and debts and claims of the complainants. This is denied in the answers, and it is averred that the value of said road has been increased more than double since it went into the possession of the A. & G. R. R. Co., by the expenditure of large sums of money in repairs and improvements.

The bill alleges that the P. & G. R. R. Co., one of the defendants, is insolvent. This is not denied by the answer. That the complainants have instituted their action at law in Leon Circuit Court against the P. & G. R. R. Co. for the recovery of their said debt, which suit is still pending and undecided. This is admitted in the answer of the P. & G. R..R. Co. ' There aré many other statements and allegations in the bill, which at this time and for the purpose of deciding the questions properly raised, it is unnecessary to notice.

The argument at bar took a wide range, embracing questions proper to be considered on a final hearing, and was characterized, both for complainants and defendants, by marked ability and learning. If the case was before us on final hearing, we should feel it our duty to consider and decide all the points raised by the bill and answer and argued at bar.

In the present condition of' the case, the record presents an appeal from an interlocutory order of the court below from granting an injunction, and to the propriety of granting an injunction we shall chiefly direct our inquiries, leaving other questions to be settled when they properly arise. The object and purpose of an injunctionis to preserve and keep things in the same state or condition, and to restrain

an act, which if done, would be contrary to equity and goad conscience ; and it is the appropriate relief when the remedy at law is subsequent to the injury, and the effectp cannot be •adequately compensated. Jeremy’s Eq. Juris., 308. In order tq support a motion for an injunction, the bill should .set forth a ease of probable right, and a probable danger that the right would be defeated without the interposition of the court.

I.t is not enough that a complainant shall allege in his bill that the injury will occur to himself or property, but he must show facts to enable the court to judge jf the injury will be of the character stated, before he will be entitled to the interposition of the court. 1 Randolph, 206; 11 Ela. Rep., 167. Ip th.e ca.sg .of the Attorney General vs. New Jersey Railroad & Transportation Co. the court say, “ the injunction is a preventive remedy. It interposes between the complainant and the injury he fears or seeks to avoid.

If the injury be already done, the writ can have no operation, for it cannot be applied correctively so as to remove it.” 2 Green’s New Jersey Rep., 141. It is objected on the part of the defendants that the injunction in this case is used correctively and as a punishment ; that the relief granted by the chancellor is inconsistent with the special relief prayed for in the bill, and for this and other reasons the injunction should be dissolved.

To this it is replied on behalf the complainants, that if the court shall find that the bill contains no prayer for specific relief, corresponding’ to the relief decreed, yet under the prayer for general relief the court may grant any other relief, though inconsistent to the relief specially asked, provided it be agreeable to the case made by the bill. Many authorities have been cited for and against the positions assumed, but we shall only refer to a few of the leading ones. In the case of English vs. Eoxhall, the Supreme Court of the IJ.

States held, t( that under a general prayer for relief, only relief consistent with the case made in the bill can be granted. The same court decided the same point in the case of Hobson vs. McArthur, and the citatións from Story’s Eq. are to the same effect. 2 Peter’s Sup. Ct. Rep., 223; 8 Cond. Rep. Sup. Ct., 229; 16 Peter’s Sup. Ct. Rep., 195; Story’s Eq. Pl., §40, 41, 42, 43.

On examination it will be found that these authorities do not decide the question raised in this case; they decide that under the prayer for general relief, such relief may be afforded as is consistent with the case made in the bill, thong]» not specially prayed for; but they do not decide that relief may be granted inconsistent with the relief specially asked. In the case of Hiern vs.

Mill, decided by Lord Chancellor Erskine, lie said: “ If the bill contains charges, putting facts in issue that are material, the plaintiff is entitled to the relief which those facts will sustain under the general prayer; but he cannot desert specific relief prayed and under the general prayer ask specific relief of another description, unless the facts and circumstances charged by the bill will, consistently with the rules of the court, maintain that relief.” It is important to ascertain what were the rales of the English Courts of Chancery on this subject, in order rightly to understand the import ’ of this ruling of the Chancellor.

Formerly the chancellors prescribed rules governing the practice of that court in all matters, even to the manner in which bills should be framed ; and this was so up to the 15 and 16 Tide., ch. 86, sec. 10, when Parliament passed

an act to amend the practice of the Court of Chancery. The length of a bill, with its charging part, and its pretences, was found to be inconvenient and unnecessary, and this act was passed in order to render the practice simple and easy in the preparation of bills and answers. “ This statutory direction, says Mr. Daniel, does not alter the rules in force previously.

That rule was, that when the prayer did not extend to embrace all the relief to which the plaintiff might at the hearing show a right, the defect in the relief might be supplied under the general prayer, provided that such relief waa consistent with that specifically prayed, as well as with the case made by the bill, for the court would not suffer a defendant to be taken by surprise, and permit a plaintiff to neglect and pass over the prayer he had made, and take another decree, even though it were according to the case made by his bill.” Daniel’s Ch. PI. and Prac., 383.

From this it will be seen that when Lord Chancellor Erskine said, “that the plaintiff cannot desert specific relief prayed and, under the general prayer, ask specific relief of another description, unless the1 facts and circumstances charged by the bill will, consistently with the rules of the court, maintain the relief,” he must be understood as declaring that the rules of the court would not allow the plaintiff to ask specific relief of one kind and get special relief of a different and inconsistent kind from that asked for. In the case of Butler et al. vs.

Durham, it was held by the Supreme Court of Georgia “ that if there be a prayer for specific relief and also a prayer for general relief, the complainant shall have such other relief, under the general prayer, as is consistent with the case made and the special prayer and no more.” 2 Kelly’s Ga, Rep., 420; R. M. Charlton’s Rep., 280. In the case of Stone vs.

Anderson and Treadwell vs: Brown, it was held by the Supreme Court of New Hampshire “that, under the prayer for general relief, the plaintiff may have such relief as he is entitled to, without regard to any defect in the prayer for special relief, provided it does not conflict with that specially prayed for.” 6 Foster’s Rep., 506; 44 New Hamp. Rep., 551. The court, under the general prayer’ for relief, will grant such relief only as the case stated in the bill and sustained by the proofs will justify.

The frame and straeture of the bill in this case is for an injunction to restrain the defendants from running, using or removing locomotives and cars over the road or any part thereof, or committing waste thereon, or in any way, manner’ or form using the said road, to the detriment in value of the same, by wearing out the same ; and for an account of the indebtedness of the plaintiffs to the defendants, and for a sale of the road to satisfy the same.

There is nothing in this bill looking to the impounding the revenues of the road, and requiring its officers to make monthly returns of its earnings and expenditures to the court. No such decree was either necessary or proper to preserve the property so that it might be forthcoming to respond to the plaintiffs’ lien when asserted.. If the facts would justify a prayer or decree for any such relief, the bill should liaw been framed with that Adew. This bill is not so framed.

The relief granted by the Chancellor is not the special relief asked for by the complainants, and if the decree made in this case is to be sustained, it must be under the general prayer for relief in the close of the bill. As to the relief to be given under a general prayer, we have seen the rule to be, that it must be agreeable to the case made by the bill, and not inconsistent with the relief specifically prayed for. Chalmers vs. Chambers, decided by the Court of Appeals of Maryland, 6 Harris & Johnson’s Rep., 30.

In this case the relief asked is for an injunction to restrain the defendants from running, using or removing locomotives and ears over the road, or any part thereof, or in any manner using the said road, and also for an account and sale of the road, to satisfy the debt and claim of the complainants; and a general prayer for such relief as to the court should seem meet. The relief granted by the decree of the Chancellor is, “ that the defendants be enjoined from executing or in any wise carrying into effect the agreement entered into between the President of the P. & G. E. E. Co. and the President of the A. & G.

E. E. Co., relative to the sale or lease of said branch road, and that the A. & G-. E. E. Co¡ be enjoined from paying over to the P. & G. E. E. Co, any sums of money growing out of the consideration upon which the aforesaid agreement, contract, or attempted sale or lease ivas madej 2d. That the A. & G. E. E. Co. be enjoined, until the further order of the court, from disposing in any manner whatsoever of any of the incomes and earnings of said branch road, except in the payment of the necessary repairs and the necessary expenses of running and operating said road. 3d. That the defendant, the A. & G. R. R.

Co., do make to this court a monthly report showing the gross amounts of its receipts from the said, branch road, extending from Livo Ohk Station • to the Georgia boundary line, and also the amount expanded for repairs and the expenses of operating said road. 4th. “ The same order as the above, against the P. & G. E» E.

Co.” 5th. “ That the defendants do appear before tlio Chancellor, at his Chambers at Lake City, on Friday, the 15th day of May, 1867, to show cause, if any they have, why a Eeceiver shall not be ap]3ointed in this case.” We are now called upon to decide if the relief granted is agreeable to the case made by the bill, and not inconsistent with that specifically asked.

The statement of the special prayer for relief and the relief granted answers the question,for it would be difficult to conceive anything in Chancery proceedings more inconsistent than the prayer for specific relief in this case, and the decree rendered. The complainants ask that the defendants be l'estrained from running their cars and locomotives over the road to its injury and their detriment: The decree responds to this prayer of the complainants by permitting the defendants the free use of the road, but impounds the revenues arising from its use.

The relief asked for is refused, but something else, wholly inconsistent, and to the great injury of the defendants, is granted. Was there any obstruction to the court’s granting the particular relief prayed ? If not, the plaintiffs could not abandon that asked and take a different decreé under the general prayer. Allen vs. Coffman, 1 Bibb R., 469; Thompson vs. Smithson, 7 Peters’ Rep., 144; Read vs. Cramer, 1 Green. Ch. Rep., 277. In this case we can see no obstruction to the granting by the Chancellor the particular relief asked, if it was proper to issue an injunction at all.

The complainants charge in their bill the insolvency of the defendant, (P. & G. R. R. Co.,) and on the argument this was urged as a good ground for issuing the injunction. The insolvency of the debtor is never a sufficient reason of itself for the exercise of the extraordinary power of the court by way of injunction, and courts have never acted upon the suggestion of insolvency in the debtor unless there was some other equitable ground for its interposition. The case of Yonge & Bryan vs. McCormick, cited from 6 Fla. Rep., 370, is not in opposition to this recognized principle of equity.

In that case the facts were as follows ; The complainants had purchased from the defendant a tract of land, had paid a part of the purchase money and given their notes for the balance. The title to a part of the land was found to- be in the wife of the- defendant and not in himself. The bill was filed to restrain the defendant from collecting the balance of the purchase money for which the- notes had been given, and it sets forth the failure of consideration because of the defect of defendant’s title to the land, and also the insolvency of the defendant. Baltzell, Ch.

J., in delivering the opinion of the court, says: “ The. defectiveness of the title to a part of the property, and the inability of defendant, through insolvency, to compensate the deficiency, are the grounds of equity set. forth by complainants, and are sufficient of themselves to entitle them to the injurietion.” It will be seen, from an examination of this case, that the court do not place their decision on the ground of the insolvency of the vendor, but upon that of a failure of consideration and the insolvency of the vendor combined; and that it would be inequitable to allow the vendor to recover from his debtor a sum of money for property to which he had no title, and which, if paid, he, ex cequo ei bono, ought to refund.

It is urged in argument that the injunction was properly Issued to restrain the defendants from committing waste by Injury to or destruction of tfee property. To authorize the Interposition of the court on this ground, the bill must set forth such a statement of facts as will warrant the exercise of this extraordinary power. To do this, it must appear to «the satisfaction of the court that unless its aid is given irreparable injury would be done to the complainants, and these facts must appear in the bill to enable the court to judge if the injury will be of the character charged.

In the present case the answer of one of the defendants (the A. & G. R. R. Co.,) alleges that the value of the road has been greatly enhanced by the expenditure of large sums of money in improvements and repairs, and the court must be presumed to know that railroads, over which passengers .and freights are dally transported, do not usually fall into decay, and .are not liable to that irreparable injury from waste, whieh alone will authorize the granting an injunction to stay it. In the case of Thebaut & Glazier vs.

Canova et als., decided by this court at the last term, it is laid down that courts with great reluctance interfere with the free use and enjoyment of property by its owner, as his taste or his inclination may direct; and it is only in a case where it is clearly made out that this use and enjoyment is prejudicial and injurious to the rights of others, that it will lend its aid to restrain and abridge this free enjoyment. They should ponder long and consider well, when their aid is invoked for this purpose, before they act.

The complainants claim that they have a lien on the road for the work done and the materials furnished'; that it is an equitable lien, and they are therefore entitled to the injunction granted. The existence of a lien will, it is true, authorize their going into a Court of Equity to enforce it, and will give to the court 'jurisdiction, but it does sot follow, because they may have a lien for the security of the ultimate payment of their claim, that they are therefore entitled to an injunction to restrain the defendants in the free use and enjoyment of their property.

If it was made clearly to appear to the court that the complainants had an unquestioned lien on the road for the payment of their demand, yet before they would entitle themselves to the interposition of the court, by way of an injunction, they must allege and show that the use of the' road by the defendants would in all probability tend to its injury or destruction to an extent that would impair its value as a security for their demand, and peril its ultimate payment, when their lien shall come to be enforced in the courts by decree.

The facts contained in the record do not warrant the court ip coming to the conclusion that such would be the case. The road is within the jurisdiction of the court and cannot be removed. The answer of the A. & G. R. R. Co., one of the defendants, alleges, .that by the„large sums of money expended and. laid out in repairs and improvements, the value of the road has been doubled, and that it is greatly more than sufficient to respond to the demand of complainants, if it shall be adjudged that they have a lien on it for the payment .of their claim.

Whatever lien the complainants may have cannot be lost or impaired by the action of the defendants, unless such action should result in injury to, or destruction of, the property to such a degree as to reduce its value below the amount claimed by the complainants.

No sale or- transfer of the property pending this suit can convey a title that would defeat any lien they may have, and if the defendants were to attempt to impair its value by any act of waste or wanton destruction of the subject matter, to an .extent that would render inadequate the complainants’ security, it would be their right to apply for and receive the aid of a court of equity to restrain the defendants until they could assert their claim by a decree. It is urged in argument that there is no equity in the bill, and that the complainants have a plain and adequate remedy at law.

In the present condition of the cause, we do not feel called upon to decide the point made by the objection. This is an appeal from an interlocutory order of the chancellor granting the injunction to restrain the defendants from the use of their road. The bill sets up an equitable lien on the part of the complainants, which is denied by the defendants in their answers. From the record we do not clearly see that any such lien exists or is established, yet as it may be in the power of complainants to establish the existence of a lien on their part, the bill will not be dismissed.

For the reasons herein set forth, we think the injunction in this case was improvidently granted, and that it must be dissolved at the cost of complainants and the case remanded to the Circuit Court of Suwannee Circuit for further proceedings, not inconsistent with this opinion.