Burnley v. Cook

13 Tex. 586 | Tex. | 1855

Wheeler, J.

The proposition that an injunction will in no case be granted for the prevention of injuries to the plaintiff’s freehold or the enjoyment of his rights of property, where the defendant is in possession under an adverse claim of title, as insisted by counsel for the appellee, does not seem to be universally admitted. On the contrary, where the defendant was in possession of land, which he claimed by an adverse title, and a suit was pending to try th'e title at law, an injunction was granted to restrain him from cutting timber and committing other waste. (Shubrick v. Guerard, 2 Desau. 616.)

It is true, that an injunction will not be granted to restrain a mere trespass where the injury is not irreparable, or destructive to the plaintiff’s estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. It must be a strong and peculiar case of trespass going to the destruction of the inheritance, or where the injury is remediless, or not susceptible of pecuniary computation and compensation, to entitle a party to this preventive remedy. (7 Johns. Ch. R. 315.) The ancient doctrine of the Court of Chancery was not to interfere by injunction in cases of trespass, but to leave the party to his legal remedy. But the practice of the Court is now more liberal; and in cases of trespass it excepts a strong case of destruction, or irreparable mischief. (Eden on Injunctions, 231 n. 1, 3rd edit.; Bonaparte v. The C. & A. Rail Road Co., 1 Baldwin, 231, 232.)

The practice (it is said) of issuing injunctions in cases of trespass, on the principle of irreparable mischief, has now become extremely common. (Hanson v. Gardiner, 7 Sumner’s Vesey, 305, b, note c.) An injunction may be granted to stay waste pending an action at law, or a suit in equity to try the right. (Atty. Genl. v. Norwood, 1 Bland, 581; Id. 582; Id. 583.) But an injunction will not be granted to stay waste or nuisance, before a hearing on the merits, except in cases of urgent necessity, or where the subject matter of the complaint is free from controversy, or irreparable mischief will be produced by its continuance. (Charles River Bridge v. Warren Bridge, 6 Pick. 376.) In all cases where the right is doubtful the Court will direct a trial, and in the meantime, if there be danger of irreparable mischief, or if there is any other good cause of granting a temporary injunction, it will be ordered, so as to restrain all injurious proceedings; and when the plaintiff’s right is fully established, a perpetual injunction will be decreed. (Ingraham v. Dunnell, 5 Metcalf, 126; 2 Story’s Eq. 925, 926; 3 Daniell’s Ch. Pr. 1850 n. (1) 1st Am. Edit.) It is a mistake, therefore, to suppose that an injunction will in no case be granted to restrain the commission of acts which may amount to trespasses, if committed under an adverse claim of title.

Nor, where a special injunction has been granted will it be dissolved of course, upon the coming in of an answer in which the plaintiff’s whole case is denied. The answer must not only positively deny the material facts which constitute the plaintiff’s title to equitable relief; but the denial must be grounded upon personal knowledge of the facts; and the statements must be at least credible. (1 Dev; Eq. 429; 2 Dev. & Batt. 19; Eden on Inj. 140, n. (1.) The answer must not consist of statements of matters of law, but of matters of fact which the defendant had the means of knowing to be true. “ The weight of an answer (said Ch. J. Marshall in Clark’s “ Ex’ors v. Van Riemsdyk) must also, from the nature of evidence, depend in some degree on the fact stated. If a de- “ fendant asserts a fact which is not, and cannot be within his ££ knowledge, the nature of his testimony cannot be changed “by the positiveness of his assertion.” (3 Cond. 325.) In Poor v. Carleton, (3 Sumn. R. 70) Judge Story said, “ The '*'■ ground of the practice of dissolving an injunction upon a “ full denial, by the answer, of the material facts, is, that in “ such a case, the Court gives entire credit to the answer, up-, 61 on the common rule in equity, that it is to prevail, if respon- “ sive to the charges in the bill, until it is overcome by the tes- “ timony of two witnesses, or one and other stringent corrobora- “ tive circumstances. But it would certainly be an evasion of “ the principle of the rule, if we were to say, that a mere naked 51 denial by a party who had no personal knowledge of any “ of the material facts, were to receive the same credit, as “if the denial were by a party having an actual knowledge “ of them. In the latter case the conscience of the defendant “ is not at all sifted; and his denials must be founded upon “ his ignorance of the facts, and merely to put them in a train “ for contestation and due proof, to be made by the other “ side. * * * * The sole ground, upon which the de“fendant is entitled to the dissolution of an injunction up- “ on an answer, is, that the answer in effect disproves the case “ made by the bill, by the very evidence extracted from the 66 conscience of the defendant, upon the interrogation and dis- “ covery, sought by the plaintiff to establish it. But what sort “ of evidence can that be, which consists in the mere negation “ of knowledge by the party appealed to ? Such negation af- “ fords no presumption against the plaintiff’s claims; but “ merely establishes, that the defendant has no personal knowl- “ edge to aid it, or to disprove it.” (See York v. Gregg, 9 Tex. R. 85, 93.)

Nor will an injunction be dissolved where the defendant in his answer admits the plaintiff’s equity ; but sets up new matter of defence on which he relies in avoidance. (4 Johns. Ch. R. 497; 3 Dan. Ch. Pr. 1883, n.)

There is a variety of cases analogous in principle to the present in which injunctions have been granted. (See cases cited Supra, and 2 Story’s Eq. 951.) But it might be a matter of more difficulty to find cases in which they have been dissolved upon the coming in of an answer of the character of the present, consisting of the statement of matters of law, and matters of fact, of many of which, it is not to be supposed the defendant had, or meant to be understood as having any personal knowledge; and new matter in avoidance. But it is not necessary to express a decisive opinion upon this branch of the case, as it is not necessary to its present disposition; and it is understood that the controversy between the parties as respects the injunction is now at an end.

But we think it clear that the Court erred in dismissing the case. The petition contains averments sufficient to maintain an action of trespass to try title; and if for no other purpose, it should have been retained for this. And whatever doubt there may be as to the granting or dissolving of the injunction, this, at least, seems quite too clear to admit of doubt or controversy.

The objection to the right of the District Court of Harris county to entertain jurisdiction of the case is answered by the fact that the change of venue to that county was made on motion of the defendants, and by consent of parties. And though consent cannot give jurisdiction as respects the subject matter of the suit, it may do so as respects jurisdiction over the person. (8 Tex. R. 122; 6 Id. 379.) The judgment is reversed and the cause remanded.

Reversed and remanded.