Brown v. Solary, 37 Fla. 102

Brown v. Solary

37 Fla. 102 | Fla. | 1896

Mabry, C. J.:

The grounds of the demurrer that were sustained involved only formal defects that were supplied at the hearing of the demurrer. The alleged defect as to the prima facie sufficiency of the tax deed extended only ■to the absence of a seal on the copy filed with the bill, and this was simply a clerical oversight in the clerk in •not affixing the seal to the copy. The other grounds of the demurrer were considered and expressly overruled, with leave to demurrants to answer or plead to the bill. The amendment of the-mere formal defects having been made on the hearing of the demurrer,' the objection to the bill on their account was then removed, and defendants are entitled to have the adverse ruling of the court on the other grounds reviewed without demurring again after the amendment was made. The first and second grounds overruled question the right of complainants to any relief in equity on the allegations of their bill. In connection with these two-grounds we consider the seventh, that the bill does not sufficiently allege possession of the land on the part of complainants.

The case made for complainants, briefly stated, is that they were seized in fee of the land in question; that one Tompkins acquired a pretended tax deed to it, and, claiming thereunder, conveyed by quit claim deed an undivided half interest to one McMurtry; that Tompkins and McMurtry conveyed that portion of the *109land west and northwest of the Silver Springs, Ocala & Gulf Railroad to defendants James EL Smith, Norman R. Smith and J. P. Pulcifer, and that portion east of said railroad to defendant C. M. Brown; that the tax deed to Tompkins was void on account of certain specified defects in the tax sale proceedings; and that defendants Brown, Agnew, Gillen, Baldwin, the-Marion Phosphate Company, and the Silver Springs, Ocala & Gulf Railroad Company, confederating to injure and defraud complainants,, had unlawfully, severally and jointly, entered upon the land under color of said pretended tax deed, and other pretended claims, unknown to complainants, and had been and were mining the land for'phosphate, and had taken and were taking phosphate from the soil, of great value, the exact value complainants were unable to learn without an accounting. It was also stated that phosphates were taken in great quantities, and the land was valuable chiefly on account of the phosphate, and that defendants had committed and were committing great and irreparable injury to the land, thereby destroying its value; the tresspasses and injuries being not only irreparable, but had been and were continuous. The special relief asked is an injunction against the mining of the land and trespasses thereon, that complainants’ rights in the land be established by decree of the court, that the tax deed be set aside and declared void and that an account be taken of the phosphate dug and removed from the land, and also of the damage done to the land.

If the basis for a resort to equity rested solely upon the ground of removing the tax deed as a cloud on1 complainants’ title, the possession alleged would probably not be sufficient. The allegation is that com*110plainants were seized in fee, without any allegation that the land was wild and unoccupied. Sloan vs. Sloan, 25 Fla. 53, 5 South. 603; Haworth vs. Norris, 28 Fla. 763, 10 South. Rep. 18; Patton vs. Crumpler, 29 Fla. 573, 11 South. Rep. 225; Graham vs. Florida Land & Mortgage Co., 33 Fla. 356, 14 South. Rep. 796. Other equities than the removal of the tax deed as a cloud upon title are claimed in support of the bill. It asks for an injunction against mining phosphate in the soil of the land alleged to be valuable chiefly on account of the phosphate therein, and for an account of the phosphate already mined. A demand is also made for an account of the damages to the land by reason of the alleged trespass thereon. The basis for equitable interference in the removal of clouds from title is that a deed or other instrument, apparently valid, but void in fact, may be vexatiously or injuriously used against the rightful owner, after the evidence to invalidate it has been lost, and the owner, being in possession, can not immediately protect his right by any legal proceeding. In such case a court of equity will afford relief, and direct the deed or instrument to be delivered up and cancelled. The court grants relief in cases of trespass where the threatened injury can not be adequately compensated in damages, or where, under the circumstances of the case, the injured party has no adequate remedy at law. The foundation for the jurisdiction of equity to enjoin a trespass is, as stated in the recent case of Wiggins & Johnson vs. Williams, 36 Fla. 637, 18 South. Rep.-, the probability of irreparable injury, the -inadequacy of pecuniary compensation, the destruction of the estate in the character in which it was enjoyed, or the prevention of a multiplicity of suits. In order to successfully invoke *111the aid of a court of equity in such a case, two conditions must concur: First, the complainant’s title must be admitted or legally established; and, second, the trespass must be of such a nature as to cause irreparable injury. Carney vs. Hadley, 32 Fla. 344, 14 South. Rep. 4. The alleged injury to the realty in the case before us results from the mining and taking of phosphate from the soil itself, and we entertain no doubt that such an act is so destructive of the estate as to give the court jurisdiction to enjoin it. The old rule limiting the relief in equity to waste was departed from in cases of mining in Flamang’s Case, where a wrong-doer was working minerals in complainant’s land, and it was regarded as destructive of the estate itself. This case is cited in Mitchell vs. Dors, 6 Vesey Jr. 147; Hanson vs. Gardiner, 7 Vesey Jr. 305; Thomas vs. Oakley, 18 Vesey Jr. 184. In Mitchell vs. Dors, an injunction was granted where defendant begun to take coal in his own soil, and worked into the land of complainant, and in Thomas vs. Oakley, an injunction and account were applied against a trespasser by exceeding a limited right to enter and take stone from a quarry, on the ground that it was a destruction of thé inheritance. In 2 Beach on Injunctions, sec. 1155, it is stated that “the digging and removing of ore from a mine without permission of the owner is a trespass which will be readily enjoined, because it reaches to the very substance and value of the estate, and goes to the destruction of it as a mine.” The questions of title and possession enter into the consideration in cases of trespass, as well as when an instrument is sought to be removed as a cloud upon title. The rule formerly in use in England was not to enjoin a defendant in the use and enjoyment of land when the title was in dis*112pute, but to leave the party to his remedy at law. The Lord Chancellor stated in. Pillsworth vs. Hopton, 6 Vesey Jr. 51, he remembered being told from the bench early in life that “if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by title adverse to his, he stated himself out of court as to the injunction.” This remark does not correctly state the rule now in force, as it is plain that in cases of serious and irreparable injury going to the destruction of the substance of the estate, the court has for a long time granted injunctions, and in some cases when the title was in litigation, to preserve the property from destruction pending legal proceedings. West vs. Walker, 3 N. J. Eq. 279, note A; Duvall vs. Waters, 1 Bland Chy. 569, S. C. 18 Am. Dec. 350; Erhardt vs. Boaro, 113 U. S. 537, 5. Sup. Ct. Rep. 565; Bacon vs. Jones, 4 Mylne & Craig, 433. Should the bill state possession in defendant under such a claim of title as to show in him, prima facie right, without sufficient impeachment of it, the complainant would have no status in a court of equity, but should it appear that the defendant had éntered upon the land for the purpose of removing the substance of the soil under a claim wholly void, and this should be admitted upon the record, the court would have jurisdiction. There would be no legal question to be settled as to defendant’s title when its invalidity is admitted, and he would be placed in such case in the position of a trespasser. A trespass on reality, in general, may be defined to be an injury to, or use of, the land of another, by one who has no right or authority whatever. Duvall vs. Waters, supra. It is not necessary to enquire to what extent the court will go when the question of title is-raised by an an*113swer, as no such question is presented in the present record. The views expressed in Woodford vs. Alexander, 35 Fla. 333, 17 South. Rep. 658, are not entirely in harmony with what is here expressed. The objects of the bill in that case were the cancellation of a tax deed alleged to be void, and the prevention of the cutting and removal of timber on swamp land. After a more thorough examination of the subject we have become convinced that there was an erroneous application of the law to the facts of that case, and that the effect of the decision as a guide should be counteracted. The opinion in that case was written by the member of the court preparing this one, and he is convinced that when the value of land consists chiefly, if not entirely, in the timber thereon, its destruction amounts to irreparable injury, within the rule on the subject. The entry upon land of another, valuable only for the timber thereon, under a claim wholly void, and the destruction of such timber, amount to such an irreparable injury as to authorize the court of chancery to interfere on application of the true owner. A distinction may exist between mining land and the destruction of timber thereon, but we are convinced that an erroneous application of the law was made to the facts in the Woodford case. In the present case the bill alleges that phosphate of great value, the exact value the complainants were unable to learn without an accounting, was mined and taken from the soil, and an account of the phosphate is asked. In our opinion the allegations of the bill as to the rights of complainants and the character of the alleged injury are sufficient to give the court jurisdiction.

*114, Another ground of objection, and it seems to be the principal one insisted on, is that the bill is multifarious. It is contended that there is a joinder of two separate and distinct causes of action, and in fact a joinder of an equitable cause—the injunction—with the demand for an account of the phosphate and damages —the latter cognizable exclusively at law. It is a fundimental doctrine of the court of equity that when, by virtue of its original or concurrent jurisdiction, it has acquired cognizance of a case for one purpose, it will proceed to a complete adjudication, even to the settlement of purely legal rights which otherwise would be beyond the scope of its authority. In speaking of the right of trial by jury guaranteed by the Constitution, we said in Wiggins & Johnson vs. Williams, supra, that it might safely be stated that in all those cases in which aMourt of equity, prior to the adoption of the Constitution guaranteeing a trial by jury, and by virtue of its general or concurrent jurisdiction for one purpose, had proceeded to a complete adjudication of the entire case, even to the settlement of legal rights which otherwise would be beyond its powers, it can not be successfully claimed that the guaranty of trial by jury exists as to the legal right. To say nothing of the feature of account in the present case, it is clear that the irreparable nature of the injury alleged—going to the destruction of the estate itself—brings it within the general jurisdiction of the court to grant the injunction, and having jurisdiction for this purpose., the entire case may be adjudicated.

It is also insisted that there is a misjoinder of parties, in this, that the defendants Brown, Agnew, Gillen, Baldwin, the Marion Phosphate Company, and the Silver Springs, Ocala & Gulf Railroad Company *115are alleged, to have committed the trespasses on the land, and James EL Smith, Norman R. Smith and J. P. Pulcifer are not shown to have had any connection therewith. The last named defendants have not demurred or otherwise objected to the suit, so far as we •are advised, and it is certain that the object of the suit against those first named is single. It is alleged that they, jointly and severally, conspiring to injure and defraud complainants, entered upon the land and mined phosphate, and we do not see upon what ground they can object to the joinder of the other defendants. Bermes vs. Frick, 38 N. J. Eq. 88 note. In Bauknight vs. Sloan, 17 Fla. 284, it was held that where the object of the suit was single, and there was one general point in issue rendering the interest common to all the defendants, the objection of multifariousness will not prevail. Where the object of the suit is single, and it is shown that some one or more of the defendants have interests in distinct questions growing out of the suit, such defendants are necessary parties in order to con. elude the entire matter. Ritch vs. Eichelberger, 13 Fla. 169. It appears that the Smiths and Pulcifer are interested in a part of the land by reason of the pretended tax deed, and that the other defendants, trespassing upon the entire tract, claim under color of the same instrument. Its validity is a question in which all the defendants are interested.

The only other ground of the demurrer demanding notice is, that Tompkins and McMurtry are necessary parties. The former was the grantee in the tax deed, and after quit-claiming a half interest in the land to the latter, they conveyed their entire joint interests to the respective parties named. No fraud is charged against Tompkins and McMurtry, or either of them; *116they have parted with all their interest in the land, are-not connected in any way with the mining operations, and no relief is asked against them. We do not regard them as necessary parties to this suit. Ritch vs. Eichelburg, 13 Fla. 169; McDonald vs. Russell, 16 Fla. 260; Fridenburg vs. Wilson, 20 Fla. 359.

The plea was overruled, and it is claimed that the-court erred in this ruling. In determining the sufficiency of the plea we must accept every fact stated in the bill, and not denied by the plea, as true, and the-facts stated in the plea as true. Wilson vs. Fridenburg, 19 Fla. 461. It is not questioned that this is the correct rule. The pleas allege that complainants were in possession at the time of filing the bill, and that neither of the defendants was in possession. It is also alleged that defendants were not at the time of filing-the bill mining the land, that phosphate was not then being taken therefrom in great quantities, or in any quantity, that defendants, or either of them, were not then committing great and irreparable injury, or any injury whatever, to the land, or that the land was then-being injured continuously or otherwise. The statements of the bill not in conflict with the foregoing allegations must be considered as true. The invalidity of the tax deed is conceded, and also that defendants, with the design of defrauding and injuring complainants, had entered the land, under color of said tax deed, and dug and carried away phosphate in great quantities and value, the exact value of -which could not be ascertained without an accounting. The plea shows such possession in complainants- as to authorize the court to cancel the void tax deed, but the bill is defective, as we have seen, in pot sufficiently alleging possession, and according to strict rule complainants-*117may not be able on their bill to invoke this equity in their favor. (The bill was ample, however, to give the ■court jurisdiction to award an injunction and call for an account. The defendants entered upon the land without legal right, and with the purpose, as admitted upon the record, of defrauding complainants, and had committed serious and irreparable injury. The defendants were not committing the injury at the moment of time when the bill was filed, but they do not disclaim their purpose to continue' in the future to carry out the formed design to take phosphate out of the soil. Their past conduct justifies a well-grounded apprehension of further injury, and the court would be justified, without further showing, in permanently ■enjoining them from trespassing upon the land. Upon a proper bill for an injunction the court will make a complete decree and give satisfaction, and not compel a complainant to sue at law. Jesus College vs. Bloom, 3 Atkyns, 262. The bill further asks for an account and discovery of the phosphate taken from the land, and which could not be ascertained without an accounting. In our judgment the pleas make no sufficient answer to the bill. Let the decrees be affirmed.