71 S.E. 820 | S.C. | 1911
July 5, 1911. The opinion of the Court was delivered by Plaintiff brought this action for damages and injunction, alleging that it is the owner in fee of the land described in the complaint, and that defendant had trespassed thereon, and had threatened to continue trespassing thereon, by cutting and removing the timber therefrom. Upon the verified complaint, Judge Wilson granted an order restraining defendant from cutting or removing timber from the land in dispute, or from entering thereon. Plaintiff was required to give an injunction bond, as provided by statute, in the sum of $5,000.00.
The defendant answered, admitting that it had been and was cutting and removing the timber, but denied plaintiff's title to the land. Upon the answer, which was verified, and the affidavit of E.H. Burton, president of the defendant company, from which it appeared that defendant was and had been in actual possession of the land in dispute, and that, before the restraining order was issued, a large quantity of timber had been cut, which was then lying on the ground and would be ruined, unless it was sawed into lumber before the litigation could be ended, and that *145 defendant alone had the necessary logging equipment to handle it, the Circuit Judge, on motion of defendant, modified his preliminary order so as to allow defendant to remove the timber which had already been cut, upon its giving bond for plaintiff's protection in the sum of $5,000.00, the amount of damages alleged in the complaint.
From this order plaintiff appealed, contending that, in effect, it operated to compel the sale of its property to defendant, and is, therefore, a taking of private property for private use without consent of the owner, in violation of the inhibition of the Constitution. It is clear that such contention is unsound. Ordinarily, the purpose of an interlocutory injunction is merely to preserve the existing status during the litigation, and, as a general rule, subject to some exceptions which need not be mentioned here, it will not be allowed to have the effect of transferring the possession of property from a litigant in possession to another who claims the right to possession. Pelzer v.Hughes,
Affirmed.
MR. JUSTICE GARY did not sit in this case.