
    Omaha Lithographing, Etc., Co. et al. v. Andrew J. Simpson.
    [Filed March 11, 1890.]
    1. Injunction: Action on Bond: Counter-Claim: Res Adju-DICATA. One S. leased to a lithographing company certain premises for the purpose of carrying on its business therein. The company commenced to put in a steam engine and to erect a smoke stack and steam pipe in order to operate its machinery by steam power. S. thereupon commenced an action to enjoin it from putting in the same, alleging injury to the building, his business, etc. A restraining order was obtained which was after-wards modified to allow the company to erect the smoke stack and steam pipe, put in the steam engine, and operate its machinery by steam, etc. The court also appointed a commissioner “ to see that no precaution or provision necessary to malge said smoke stack secure and safe shall be omitted.” After-wards S. dismissed the injunction suit. In an action by the company on the inj unction bond, S. ignoring the order in the injunction suit sought to set up the same fact, as a defense and for affirmative relief. JHeld, That all questions as to the right of the company to erect and maintain the things named were decided in the former action and that unless new facts were presented sufficient to entitle S. to relief he could recover nothing on his alleged counter-claim.
    Error to the district court for Douglas county. Tried below before Doane, J.
    
      Winfield S. Strawn, for appellant,
    cited: McDuffie v, Bentley, 27 Neb., 380; Frederick v. Kinzer, 17 Id., 368; Boyer v. Clark, 3 Id., 161. .
    
      Montgomery & Jeffrey, contra.
    
   Maxwell, J.

This action was brought by the plaintiff against the defendant on an injunction bond. On the trial of the cause the jury returned a verdict of one dollar for the defendant, upon which judgment was rendered.

It appears from the record that in June, 1885, the defendant leased to the plaintiff certain portions of a brick building owned by him, to be used by the plaintiff in carrying on its business; that soon after the plaintiff took possession it proceeded to put in a steam engine and to erect a smoke stack and steam pipe in said building for the purpose of propelling its machinery; that the defendant thereupon began an action in equity against the plaintiff-to restrain it fronT erecting a smoke stack or putting in said engine. A restraining order was obtained on the 24th day of September, 1885, and on the 9th day of October thereafter the order was modified so as to permit the plaintiff to put in the engine and erect the smoke stack and steam pipe under the supervision of a commissioner named by the court. On the 19th day of April, 1887, the action was dismissed by Simpson at his costs. The plaintiff thereupon brought this action upon the injunction bond, alleging that it has sustained certain damages named, by reason of the granting of the injunction, among others the fees paid to its attorneys to procure a dissolution of the injunction, and losses caused by interruption of its business, and from the enforced inability to employ its workmen while said restraining order was in force.

To this petition the defendant interposes a number of denials and by way of counter-claim pleads the following :

“On June 1, 1885, this defendant was the owner of a certain four-story brick building known as Nos. 110 and 112 South Fourteenth street, located on the south 44 feet, of lot 1, in block 105, in city of Omaha, Douglas county, Nebraska. On the north 88 feet of said lot 1 other buildings were located, occupying the space between the defendant’s building and the south side of Dodge street. The said other buildings were 66 feet deep east pnd west, and the defendant’s said building was 90 feet deep east and west, the west 24 feet being located on the south 44 feet of the east 21 feet of lot 2 in said block 105, which said lot 2 was also owned by this defendant. Upon the west 40 feet of said lot 2 the defendant also owned a four-story brick building facing on Dodge street, which at the east rear end was joined to the rear end of this defendant’s said Fourteenth street building. Between this defendant’s said Dodge street building and the building owned by other persons above described as upon the north 88 feet of said lot 1 there was an area, or court, 24 feet wide east and west and 88 feet long, running from Dodge street on the north to this defendant’s said Fourteenth street building on the south side, which area, or court, was owned by this defendant and was used by him in his business as a carriage manufacturer for the storage of carriages and sundry vehicles in the process of construction and repair and in his said business.

“On or about June 1, 1885, this defendant and the said plaintiffs entered into an agreement for a lease by this defendant to the said plaintiff, the Omaha Lithographing and Stationery Company, acting through the other of said plaintiffs, James J. Cummings, the secretary of said company, of the second floor of this defendant’s said Fourteenth street building, to be used by the said plaintiffs for the purpose of the said lithographing business. The said plaintiff Cummings agreed in behalf of the said plaintiff company to execute a written lease of said premises, together with the defendant, for a period of three years from said June 1, 1885, and pursuant to said agreement the said plaintiffs took possession of said premises and occupied the same up to, on, and subsequent to October 23, 1885. A lease was prepared at this- defendant’s instance and presented to said plaintiffs for execution, but they always failed and refused to execute the same. Prior to that time the plaintiffs, in their said lithographing business, were obtaining their power by means of belting connections with the engine owned and used by one Davis, in the building adjoining this defendant’s said Fourteenth street building, and under a contract with said Davis, and it was understood and agreed by and between the defendant and the said plaintiffs at the time the said agreement for a lease was entered into, that the said plaintiffs would continue to obtain the power necessary for their said lithographing business, in the same manner and from the same source.

“At that time, and ever since, this defendant refused to consent to the use of a boiler and engine in the said premises, proposed to be leased by the plaintiffs from the defendant, and the said plaintiffs agreed to take a lease with full understanding of the defendant’s position in that regard. Subsequent to the time when the plaintiffs took possession of the defendant’s said premises, the plaintiffs had a disagreement with the said Davis by reason of which, except on certain terms which the plaintiffs refused to accept, the said Davis declined to furnish power to the said plaintiffs. Thereupon, and contrary to the agreement between the defendant and the plaintiffs, the plaintiffs placed in said defendant’s premises a boiler and engine, which they pi’oposed to, and for more than a year thereafter did, use in said premises for the purpose of obtaining power to run certain machinery which they had placed in the said premises for the purposes of their business.

“The.said plaintiffs defaced and injured the defendant’s said building by putting through its north wall upon the second floor thereof three several holes, two of which were out through into the adjoining room occupied by the said Davis, and the third of which opened out upon the above described court or area. The latter hole was made by the plaintiffs for an opening, out of which they proposed to run a sheet-iron flue or smoke stack from the said engine, and all of said holes were cut without this defendant’s authority and against his protest, and their effect was to greatly damage and weaken the said north wall and injure the said building. The plaintiffs did finally put a flue or smoke stack through the said hole from their said engine, running the said smoke stack into the said court or area, and upon the north side of the said building within said area to the top of said building or thereabouts. The said plaintiffs also run through said hole and along side said smoke stack a steam pipe, which smoke stack or flue and steam pipe the plaintiffs used for a year or thereabouts, contrary to their agreement with this defendant and against and in spite of the objections and protests of this defendant. During said time, smoke and cinders and dust and dirt mixed with steam, and the water therefrom formed, descended and fell into the aforesaid described area or court of this defendant, and into the windows and doors upon the west side of the defendant’s aforesaid Dodge street building, upon the carriages and sundry road vehicles kept by this defendant in his said court and the building, in the process of construction and repair, all to the great damage of this defendant; that, by reason of the facts aforesaid, this defendant has been damaged by the said plaintiffs in the sum of at least $1,000, for which the said plaintiffs are liable and indebted to this defendant.”

To construe this answer properly, it will be necessary to consider the order made October 9,1885, in the injunction case, which is as follows:

“Now, on this day, this cause coming on to be heard on the application of the plaintiff for a temporary injunction herein, and on hearing the evidence and arguments of counsel it is ordered that the restraining order heretofore ordered herein be modified as follows, to-wit:

“ That the defendant be allowed to use and operate the engine and boiler now in the premises occupied by it; that the defendant be allowed to run the smoke stack through the wall and up the side of the building at the place where the aperture therein now is, provided that the defendant shall in every proper way provide for the safety of all buildings and property surrounding or adjacent to said smoke stack, so that no danger shall result; that Philo Cowing be hereby appointed a commissioner of the court to see that no precaution or provision necessary to make said smoke stack secure and safe shall be omitted in the erection thereof by the defendant or its agents; the plaintiff not to be prevented from providing for the safety of his property by any means not inconsistent with the free use and enjoyment of the defendant; and it is further ordered that this order be without prejudice to an application of either of the parties hereto-for modification of this order for reasons arising thereafter.”

No modification of the order seems to have been made..

The defendant’s proof is not as strong as his answer. The issues as to the right to place the boiler, engine, and smoke stack in the building were distinctly made by Simpson in the injunction case, and the court decided against him. That order is still in full force'and the'court in this case will not retry what has already been decided. In effect, the court in that case declared the erection of the smoke stack and steam pipe, with the steam engine in the building, lawful. Substantially, the same facts were pleaded to show the injury to Simpson that he now sets forth in his answer. Upon those facts he was beaten, and being satisfied with the judgment he took no appeal, but dismissed his action. The character of the erections and their use therefore will not now be again adjudicated unless there was an abuse or disregard of the order of the court.

There is no allegation in the answer of any matter or proof that the plaintiff in putting in the things named violated the order of the court or disregarded the direction of the commissioner appointed by it to supervise the work or any statement of facts showing a liability for damages on the part of the plaintiff.

Both the answer and proof fall far short of making a ■case which will entitle the defendant to relief, and where such is the fact the instructions cannot aid him. It is unnecessary, therefore, to review them. The judgment in favor of the defendant, therefore, cannot be sustained, and is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.  