
    Greene v. Eversole.
    Jan. 25, 1944.
    
      James S. Greene, Jr., for appellant.
    J. B. Carter and Astor Hogg for appellee.
   Opinion op the Court by

Van Sant, Commissioner

—Reversing.

The appeal is from a judgment in favor of Virgil Eversole, plaintiff below, against James S. Greene, Sr., defendant below, by which tbe defendant was mandatorily enjoined to remove a stone wall constructed by bim along the front of certain lots owned by him in tbe city of Harlan, Kentucky, whereby a passway wbicb tbe plaintiff was accustomed to use bas been permanently obstructed and closed. Tbe construction of tbe wall was commenced in September, 1942, and continued for over two months, being completed in November of that year. Tbe plaintiff testified that tbe passway was obstructed in September. Tbe record shows that be made no protest concerning tbe closing of tbe passway until after tbe construction was completed, although tbe passway was obstructed at tbe commencement of tbe construction. Tbe construction cost $480, and tbe evidence shows that it would require tbe expenditure of between $100 and $150 to remove tbe wall.

Tbe relief sought is strictly equitable. It is apparent from tbe above facts that plaintiff stood by without protest and permitted tbe defendant to expend a large sum of money in tbe construction of tbe wall and filling of tbe ground adjacent thereto, and did not seek equitable relief until after tbe construction was fully completed; whereas, if entitled to tbe relief at all, be could have prevented tbe closing of tbe passway when work was first commenced. In 28 Am. Juris., Section 68, p. 263, tbe author announces tbe following principle: “The nature of tbe relief which equity affords by mandatory injunctions calls for prompt action on tbe part of those imposed upon. This is particularly true where the injunction is sought to compel tbe removal of structures, for they are usually of such character as to cost and time consumed in their erection as to result in great disadvantage to tbe one offending in remedying tbe wrong after tbe structure bas been erected. Even though tbe injury is clear, any unreasonable delay will, in such cases, bar tbe right to tbe remedy.”

The above rule has been adopted by this Court in many cases. Trimble v. King, 131 Ky. 1, 114 S. W. 317, 22 L. R. A., N. S., 880; Herr et al. v. Central Kentucky Lunatic Asylum, 110 Ky. 282, 61 S. W. 283; Brandenburg v. Petroleum Exploration et al., 218 Ky. 557, 291 S. W. 757. In the case of Trimble v. King, supra [131 Ky. 1, 114 S. W. 319, 22 L. R. A., N. S., 880] after pronouncing, in substance, the principle above set out, the Court said: “Applying to the facts of this case the principles announced in the foregoing authorities, we have-no difficulty in determining that they make out a perfect case of equitable estoppel. The parties complaining knew they had a right to the passway. They saw, without protest or objection, appellee close it. They saw the expenditure by him of large sums of money in improvements induced by the closure, and they will not now be heard to dispute his right to do that which they tacitly consented he might.do.”

In the same opinion, citing Wright v. Williams, 77 S. W. 1128, 25 Ky. Law Rep. 1377, the Court said: “If a person may be divested of title to land by estoppel—and of this there is no doubt — we see no reason why he may not be deprived of the right to an easement upon land. ’’

We believe no further citation of authorities necessary to support our conclusion that, since the relief' sought is equitable in its nature, the plaintiff is estopped by his failure to exercise diligently the right he now asserts. The maxim that “equity aids the vigilant, not those who sleep on their rights” has peculiar force when the injunctive power of the Court is invoked. 28 Am. Juris., Sec. 61, p. 257. The decision in this case is based upon principles peculiarly applied by courts of equity, and nothing said in this opinion shall be construed to-affect the rights of the plaintiff, if any he has, in an action at law for damages by reason of the acts complained of.

The judgment is reversed.  