The appellees sought and were granted a mandatory injunction against the appellants in the Lake Circuit Court whereby they were ordered to undo certain things they had done affecting a levee or dike in the southern part of Lake County, Indiana. Said levee was built in 1908 by order of the Lake Circuit Court and enlarged and strengthened in 1913 by order of the Lake Superior Court in both instances as the result of proper proceedings under the drainage and conservation laws of the State of Indiana. This levee is referred to in the record as "Brown Levee No. 1" and extends in a northeasterly and southwesterly direction across southeastern Lake County and is located somewhat over a mile to a mile and a quarter of a mile north of the Kankakee River and, in general, parallel therewith. It was built to protect lands to the north and west thereof from water which overflows the banks of said river at flood stage. In August of 1952 the appellants installed a pipe about 52 inches in diameter through said levee and, upon the complaint of the appellees filed in the Lake Circuit Court, they were ordered and directed by said court to remove said pipe and restore said levee to its dimensions as fixed and established by the court proceedings above mentioned. From the court's special findings of fact and conclusions of law we gather that this decree was prompted by the conclusion that the appellants' act in opening a 4 1/2 foot hole in said levee was wrongful, without right and unauthorized and, if permitted to remain, the flow of water through said opening will "in times of flood endanger the farm lands of the plaintiffs (appellees) and others north and west of said levee and cause them to become wet and untillable."
Before discussing the merits of this controversy a bit of descriptive background may be helpful. The Kankakee
We think it is fundamental that the extraordinary remedy of mandatory injunction will not be granted where the complainant suffers no substantial injury from the wrongful act of which he complains. American Plate Glass Co. v. Nicoson (1905), 34 Ind.App. 643, 73 N.E. 625. That being true it seems clear that anyone who is hailed into court for the purpose of compelling him to undo something that he has done ought to be permitted to prove that what he did, even if wrongful, resulted and would result in the future, in no injury to the complainant. There is no evidence in this case indicating that water flowing through the pipe in controversy is discharged directly upon the appellees' lands. In its special finding No. 8 the court found the fact to be that such water flows in a ditch along the east side of the Wabash Valley Railroad embankment into the Brown Ditch and "has caused the general level of the water in the Brown Ditch to rise and in times of flood would endanger" the appellees' lands and "cause them to become wet and untillable." In other words, the court's decree seems to be based on evidence to the effect that when the Kankakee river overflows its banks water passing through said pipe will overtax the capacity of the Brown Ditch and prevent the appellees' lands from draining therein and thus cause them to become too wet for farming. Yet an examination of the record in this case discloses that the court repeatedly rejected competent testimony, offered by the appellants, calculated to prove that such are not the facts.
The appellants produced William Morthland, a civil engineer, familiar with drainage and levee installations
All this evidence was rejected by the court apparently upon the theory that it constituted a collateral attack upon the judgments of the Lake Circuit and Superior Courts whereby the Brown Levee was ordered built without an opening at the point where the appellants installed the controversial pipe. The court seems to have taken the position that it is of no consequence that the installation of said pipe would not subject the appellees' lands to irreparable injury. That they had no right to alter the adjudicated construction of the
We do not conceive such to be the law governing mandatory injunctions. The courts will not enjoin a person to undo an illegal act simply because of its illegality and where the results of the act are "injuria sine damno." High on Injunctions, 4th Ed., Vol. 1, Sec. 9. It necessarily follows that proof to the effect that no substantial damage to the appellees' lands followed or could follow the installation of the pipe in question, even if installed illegally, was a vital element of the appellants' defense. The rejected testimony to which we have referred had probative value to that effect and it was harmful error to exclude it. Nor can we follow the appellees in their contention that such evidence constituted a collateral attack upon the judgments establishing the Brown Levee. Its purpose was not to modify, change or set to naught the scope and effect of said judgments in any particular but merely to prove that the appellants' acts, even if in disregard of said judgments, resulted, or could result, in no appreciable harm to the appellees. This they had certainly the right to show.
When a court is asked to compel the undoing of something that has been done it is a familiar principle that the court will balance the equities between the parties and consider the benefit to the plaintiff of a mandatory writ as against the inconvenience, expense and damage to the defendant and award relief accordingly. Weis v. Cox (1933), 205 Ind. 43, 185 N.E. 631; 28 Am. Jur., Injunctions, Sec. 20, p. 213. The court refused to consider this phase of the present suit as it not only rejected all evidence tending
What we have said amounts to this: A showing that a failure to grant the mandatory relief sought will result in irreparable injury to the appellees is an essential element of their case. Koss v. Continental Oil Co. (1944), 222 Ind. 224, 52 N.E.2d 614. The court permitted the appellees to prove such injury but declined all efforts of the appellants to prove the contrary. Such procedure scarcely resulted in a fair trial.
The appellants assert error in many other particulars but we see no reason to discuss them in detail further than to say that, in our opinion, the complaint upon which this case was tried is a good complaint and we believe that the third, fourth and fifth paragraphs of the appellants' answer were properly rejected. Whether the evidence supports the court's special findings pertinent to the issues joined on the second paragraph of answer we do not decide as it is likely that the question will not arise on a second trial.
Judgment reversed and cause remanded with instructions to grant the appellants' motion for a new trial.
Royse, J., not participating.
NOTE. — Reported in 130 N.E.2d 58.