Opinion
8 Div. 366.
April 14, 1932. Rehearing Denied May 26, 1932.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Chenault Downing, of Moulton, for appellant.
Under the facts set out in the bill, complainant is entitled to maintain this injunction. Jones v. King, 221 Ala. 179, 128 So. 378; Birmingham T. S. Co. v. Mason, 222 Ala. 38, 130 So. 559; Tidwell v. H. H. Hitt Lbr. Co., 198 Ala. 236, 73 So. 486, L.R.A. 1917C, 232; Caples v. Young, 206 Ala. 282, 89 So. 460.
T. C. Almon and Lynne Lynne, all of Decatur, for appellee.
In the absence of averment, it must be assumed that defendants are solvent and able to respond in damages. And, when there are more than one defendant, the insolvency of each should be alleged. Kellar v. Bullington, 101 Ala. 267, 14 So. 466; Chambers v. Ala. Iron Co., 67 Ala. 353. A bill to enjoin a mere trespasser can be maintained when confined to cases in which, from the peculiar nature of the property, or from the frequent repetition of the trespass, the consequent injury cannot be compensated for or remedied in an action at law. Mere threats of defendant to continue to break and enter the buildings again will not suffice to authorize injunctive relief. The bill charges a mere threatened trespass, continuous in a limited sense, continuing only long enough to break open a gin, etc., and remove goods, and is not sufficient to authorize an injunction. H. H. Hitt Lbr. Co. v. Cullman Prop. Co., 189 Ala. 13, 66 So. 720; Miller v. Burket, 132 Ind. 469, 32 N.E. 309; Cullman Prop. Co. v. H. H. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574; Montgomery L. W. P. Co. v. Citizens' L., H. P. Co., 147 Ala. 359, 40 So. 981; Bowling v. Crook, 104 Ala. 130, 16 So. 131.
The suit was for injunction, and was dissolved on motion.
The motion to dissolve the injunction against the threatened trespass was improperly granted. The cases cited are different in that there was no question of insolvency of the defendant, as is averred in the instant bill. The authorities adverted to are: Tidwell v. H. H. Hitt Lumber Co., 198 Ala. 236, 73 So. 486, L.R.A. 1917C, 232, timber cutting case, as are also H. H. Hitt Lumber Co. v. Cullman Property Co., 189 Ala. 16, 66 So. 720, and Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574; Acker v. Green, 216 Ala. 445, 113 So. 411, timber cutting and erection of a mill; Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129, removing standing timber; Woodstock Operating Corporation v. Quinn, 201 Ala. 681, 79 So. 253, throwing rocks on the lands of another; Mobile County v. Knapp, 200 Ala. 114, 75 So. 881, constructing roads over another's land; Jones v. King, 221 Ala. 179, 128 So. 378, destruction of hunting privileges and a continuing trespass; Birmingham Trust Savings Co. v. Mason, 222 Ala. 38, 130 So. 559.
The court is of opinion that there was reversible error in the ruling of the trial court, for that the averments in paragraphs 4 and 5 of the bill as amended are sufficient and set up the insolvency of the defendant; and that the complainant has no adequate remedy at law by way of redress, as to the wrongs complained of.
The judgment of the circuit court, in equity, is therefore reversed and one here rendered reinstating the injunction.
Reversed and rendered.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.