EQUITY- DECLARATORY JUDGMENT -INJUNCTION TO PROTECT RIGHT IN EASEMENT

Authors

Abstract

Defendant owned a piece of land in a city block, and plaintiff owned an ad joining piece of land together with an easement for light and air upon a contiguous strip of defendant's land 4 feet wide and 90 feet long. Plaintiff's land alongside the strip was vacant, and he had no immediate intention of building thereon. Defendant erected an office building on his land, constructing an outside stairway on the 4 x 90 foot strip. Plaintiff asked for a mandatory injunction compelling defendant to remove the stairway, stating in his argument before the court that though he had no present use for· his easement, he wanted to protect his property and preserve the right to have the strip kept clear. Held, that the injunction should be denied, for the reason that when a mandatory injunction is asked, "the court will balance the benefit of an injunction to plaintiff against the inconvenience and damage to defendant, and grant an injunction or award damages as seems most consistent with justice and equity under all the circumstances of the case.'' There was no present threat of injury and no damages had been suffered. Hence, neither remedy was available. Having reached that conclusion, the court, on its own motion, proceeded to discuss the applicability of the Michigan Declaratory Judgment Act, and found therein an adequate remedy to meet the situation. Accordingly, a declaratory judgment was rendered establishing and declaring the plaintiff's right in the easement. Hasselbring v. Koepke, 263 Mich. 466,248 N. W. 869 (1933).

Recommended Citation

EQUITY- DECLARATORY JUDGMENT -INJUNCTION TO PROTECT RIGHT IN EASEMENT, 32 Mich. L. Rev. 112 (1933).
Available at: https://repository.law.umich.edu/mlr/vol32/iss1/18