Bainbridge Farm Co. v. Ball

165 Ga. 582 | Ga. | 1928

Lead Opinion

Nines, J.

(After stating the foregoing facts.)

The petition does not make a ease for the relief sought by petitioners against the defendants. Under their lease the petitioners could cup for turpentine purposes only trees measuring eight inches and over, eighteen inches from the ground; and they had no right to cup trees of less size, or trees which were reserved by the defendants under this lease. Petitioners admit that they had been doing both of these things. In these circumstances the officers of the defendant company had the right to count the trees and measure the' lands for the purpose of ascertaining the extent of these trespasses and the amount of the damages which the company had sustained in consequence thereof, and to write to petitioners and call upon them to adjust these damages. These officers had the right to examine the trees on the defendant’s lands to ascertain whether petitioners were cupping trees which they did not have the right to cup for turpentine purposes under their lease. These facts did not constitute any undue interference with petitioners’ rights under the lease. The fact that these acts of the defendant’s officers frightened the servants and agents of petitioners did not give to petitioners any right of action against the defendant and its officers. This only shows that these servants and agents were too easily frightened, and makes at best a case of damnum absque injuria. These officers had the right to go into the woods of their company, examine the trees which the plaintiffs were working, with measuring instruments, calipers, and tape measures, and to examine these trees for the purposes aforesaid; and they could stealthily approach and measure these trees, although these acts frightened the servants and agents of petitioners. This .conduct and these acts of the officers do not give to the plaintiffs a cause of action against the defendants. This fright of the servants and agents of the petitioners was due to their undue sensitiveness, and was not well founded. Besides, it is not alleged that this conduct of the companjr’s officers had the effect of driving them from the service of their masters. The demand of the officers of the defendant company for excessive damages for these trespasses committed by the petitioners does not give to petitioners any cause of action against the defendants. At most this fact would only furnish to the plaintiffs a defense pro tanto against any actions which this company might institute against them for excessive damages for these trespasses. The threat of the defendants to bring two suits against the plaintiffs, one for the recovery of damages for cupping undersized trees, and the other for working trees which are excepted from the operation of their lease, does not entitle the plaintiffs to injunctive relief upon the theory that it will prevent a multiplicity of suits. Plaintiffs, would have a right at law to consolidate the two cases and thus make them one. Civil Code (1910), § 5520.

■ The allegations that the petitioners are anxious to have the controversy between themselves and the defendants over these trespasses settled by the judgment of the court, that they pay into court an amount which will amply cover such damages, and that they are ready and willing, if such amount be not sufficient, to pay such sums as may be required by the court, do not give the plaintiffs a standing in a'court of equity. All they will have to do is to let the defendants bring actions against them for such trespass, and set up any defenses which they may have thereto. Thus they have an ample remedy at law, and for this reason a resort to a court of equity is unnecessary. Conwell v. Neal, 115 Ga. 421 (41 S. E. 629). It follows that the petition does not make a ease for equitable relief, and was subject to demurrer if a demurrer had been filed. The failure of the defendants to demur will not justify the court in granting to petitioners equitable relief, if they were not entitled thereto under their allegations. In general, if a demurrer would hold to a bill, the court, though the defendant answers without demurring, will not grant relief. Bond v. Little, 10 Ga. 395; Brown v. Redwyne, 16 Ga. 67. So we are of the opinion that the court erred in granting the interlocutory injunction sought by petitioners.

The defendants sought to have the plaintiffs enjoined from cupping trees measuring less than eight inches in diameter, eighteen inches from the ground; and from cupping trees, although above that size, which are excepted under the lease to the plaintiffs. As the plaintiffs admit in their petition that they are cupping for turpentine purposes both trees undersized and trees excepted from the operation of their lease, and only deny that they have cupped and are cupping as many of both classes of these trees as the defendants claim, and as the working of these trees for such purpose is a destructive and continuing trespass, the defendants would be entitled to the injunction prayed by them (Camp v. Dixon, 112 Ga. 872, 38 S. E. 71, 52 L. R. A. 755; Moore v. Daugherty, 146 Ga. 176, 91 S. E. 14), unless such injunction should be denied for some other reason. The defendants allege that the plaintiffs have cupped 1040 trees within the enclosed fields, of the value of $520, and that the plaintiffs have cupped and are now chipping and using 26,350 undersized trees on the leased land, of the value of $5,270, for which sums they ask judgment. Defendants then pray that the plaintiffs be enjoined from using, working, chipping, and otherwise enjoying said timber. It is well settled that the defendants can not recover the value of the trees which the plaintiffs have cupped and are working, and at the same time enjoin them from working these trees. Under the system of pleading prevailing in this State, the defendants could maintain their cross-action against the plaintiffs to recover such damages as may have accrued to them from the alleged trespasses committed upon the lands up to the bringing of the action, and to restrain the plaintiffs from further trespassing; but where the trespasses complained of consist in the wrongful cupping and working of pine trees for turpentine purposes, and the defendants in their cross-action seek to recover from the plaintiffs the full value of such trees, the defendants can not maintain an action to recover of such full damages, and at the same time to enjoin the plaintiffs from using the trees for the value of which they sue. Swanson v. Kirby, 98 Ga. 586 (26 S. E. 71); Spencer v. Tumlin, 155 Ga. 341, 343 (116 S. E. 600). The defendants can not recover the full value of these trees, and at the same time enjoin the plaintiffs from using them. They could have brought an action against the plaintiffs to recover the damages which had accrued to them up to the institution of the action, and could have enjoined the plaintiffs from the further wrongful cupping and working of these trees. This they do not attempt to do in their cross-action; but they seek to recover from the plaintiffs the full value of the trees which they are cupping and working, and at the same time to enjoin the plaintiffs from using them. This they can not do. In this situation the trial judge did not err in refusing to grant to the defendants an injunction restraining the plaintiffs from cupping and working the trees, where they had begun to do so before the institution by the defendants of their cross-action. If the plaintiffs should undertake to cup other trees which fall below the size specified in the lease, or to cup and work other trees which are excepted under the lease from its operation, and which had not been cupped and worked at the time the defendants instituted their cross-action, they can, by appropriate proceeding in this suit, enjoin the plaintiffs.

Judgment reversed in part, and affirmed in part.

All the Justices concur.

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Rehearing

ON MOTION EOR REHEARING.

Hines, J.

The plaintiffs in error made a motion for rehearing, on. the ground that we overlooked a material fact and a material issue of law involved in the case. The issue of law is that the court below ruled that the timber on lot 190, and embraced in the enclosure fenced with woven wire, was not excluded from the lease, and that to this ruling the plaintiffs in error excepted. We did not overlook the fact that counsel for the plaintiffs in error made this contention in their briefs; but we • were of the opinion that the bill of exceptions di.d not properly allege that the court made this ruling, and did not assign error thereon. The bill of exceptions did not allege that the court made this ruling, and did not plainly and distinctly assign any error thereon, if the court had so ruled. This court will not consider assignments of error which do not plainly and distinctly state the rulings to which a party excepts and do not plainly and distinctly assign errors thereon. In the present case the trial judge, after hearing the evidence and argument upon the application of the plaintiffs for injunction, and upon the application of the defendants in their answer for injunction against the plaintiffs, passed an order revoking the temporary restraining order ¡oreviously granted against the defendants, restrained the plaintiffs from further working the seventy trees within the fenced field on lot 212, and restrained the defendants from bringing any further suits growing out of the pending cause. To this judgment as a whole the plaintiffs excepted on the grounds, (1) that it was contrary to law, .and not warranted by the facts; and (2) that the court refused to restrain the plaintiffs from working the timber upon the lots embraced in the lease of less size than eight inches, eighteen inches from the ground. They excepted specially upon the grounds, that (1) “the court refused to enjoin plaintiffs from working, cupping, and using the timber in the enclosure on lot 190,” and (2) that the order of the court restrained “defendants from bringing any further suit growing out of this cause pending this suit.” Tt will thus be seen that the plaintiffs in error did not allege that the court construed this lease as not excepting the timber embraced in this enclosure on lot 190, and did not plainly and distinctly assign error on such ruling. . In their briefs counsel for the plaintiffs in error contend that as the judge enjoined the plaintiffs from further working the seventy trees on lot 212, and did not enjoin them from working the timber in the enclosure on lot 190, the inference is that he held that the timber within the enclosure on lot 190 was not excepted from the operation of the lease. As the bill of exceptions0 does not allege such ruling by the court, and does not assign error on any such ruling, but simply assigns error upon the failure of the court to restrain the plaintiffs from cutting timber within the enclosure on lot 190, we are of the opinion that the bill of exceptions does not plainly and distinctly state that the court made this ruling, and does not plainly and distinctly assign error on such ruling; and while we are of the opinion that under the lease and the evidence the timber within this enclosure was excepted from the lease, we do not think that the assignment of error in the bill of exceptions raised the issue contended for by counsel for the plaintiffs in error in their briefs. For this reason we did not consider this contention in the opinion rendered in this case; and we overrule the motion for rehearing.