57 W. Va. 271 | W. Va. | 1905
Gr. W. Curtin claiming two tracts of nine hundred acres and ninety-nine acres of land in Webster county, lying contiguous to each other, called together a tract of one thousand, filed his bill in the circuit court of Webster counts'- praying for an injunction against Ross F. Stout, L. White and L. D. Cokeley, enjoining, restraining and inhibiting them from cutting, skidding or otherwise removing or in any way interfering with the timber and logs on the said tract of one thousand acres, and also from completing the building of the tramways, skid-ways and side-tracks mentioned in his bill, and from otherwise injuring and defacing plaintiff’s land, either by themselves, their agents, servants or employes, and for general relief; describing in his bill by metes and bounds the said one thousand acres of land and alleging that he had had the actual, continued, visible, notorious, distinct and uninterrupted possession thereof, and that prior to his purchase of the same and conveyance to him by C. D. Elliot and wife, by deed dated the 23d of September, 1893, those under whom he claimed title had such possession since the year 1873, as he
At the July rules,’ 1902, the defendants, Stout, White and Cokeley, filed their joint answer, admitting that it might be true that plaintiff had derived some kind of title to the tracts of ninety-nine acres and nine hundred acres by Elliot con-Areying the same to him, as in the bill set out, and that it might be true that said Curtin had had some sort of possession of said land; but denied that said Curtin or his grantor,. Elliot, ever owned or had any kind of possession of the tract of five hundred acres of land thereinafter set out, which was no part of the ninety-nine acres and nine hundred acres mentioned in the bill; that it was not true that the defendant Ross. F. Stout claimed title to the one thousand acres of land mentioned in'said bill; but on the contrary knew nothing of the same; that it might be true that said one thousand acres was. valuable for timber, and that Curtin expected or hoped to' manufacture the same, and that he was in the lumber business as alleged in the bill, and denied that they had cut any timber down or felled the same or had cleared any land upon the one thousand acres or done any work thereon, except upon the said tract of five hundred acres which they were informed was no part of said one thousand acres, and that Curtin had no claim or title to said five hundred acres or any part thereof; and denied that they or either of them were insolvent, or that they were committing or had committed waste in any way upon the one thousand acres of land, and filed with their answer a chain of title to the five hundred acres which was
On the oth day of August, J. E. McFarland tendered his petition in the cause praying to be made a party, and demurred to the bill and prayed that his petition might be taken as his answer to the bill setting up the same title papers to the said five hundred acres of land set out in the answer of the other defendants, and claiming that he and those under whom he claimed title had been in peaceable, undisturbed, uninterrupted, actual possession, continuous and' adverse of the said five hundred acres of land for more than thirty years last past; that in April, 1902, he had sold the timber on said five hundred acres of land to the defendant Ross F. Stout; that Stout, by some agreement or arrangement, engaged the said defendants, White and Cokeley to log and skid said timber, or sub-let the logging and skidding to them, or some part thereof, as respondent was informed; that for the purposes of this suit respondent adopted the answer of his co-defendants; denied the insolvency of Stout, White and Coke-ley, or either of them, and averred that the said Stout and. White owned large amounts of property including realty and personalty, in both Webster and Harrison counties, and as for himself that as appeared by deeds of record in Webster county, he was the owner of several thousand acres of valuable lands, worth as he believed, some $30,000.00 or more, free from debts or other encumbrances, located principally in Webster county; that the plaintiff Curtin had no valid claim or title to the said five hundred acres nor to any part thereof; but that the same was owned exclusively by respondent, petitioner, as fully appeared from his deeds, his actual, continuous, adverse, open and notorious possession and ownership for many years past and up to the present time; and prayed that he be admitted as a j>arty to plaintiff’s bill; that his petition be read as his answer, and the bill be dismissed, and the injunction dissolved, and for general relief.
Depositions were taken and filed both by plaintiff and defendants. The cause was heard on the 29th day of August, in vacation upon the plaintiff’s bill, the order of injunction, the joint answers of defendants Stout, White and Cokeley and the plaintiff’s general replication thereto, demurrer and answer of defendant McFarland, the depositions of witnesses and upon the motion of the defendants made at Sutton pursuant to the notice thereof on the 26th day of-August, 1902, in the vacation of the circuit court of Webster county, to dissolve said injunction, when the judge overruled the demurrer and the said motion to dissolve said injunction was overruled, and said injunction continued. From which decree defendants appealed.
It is insisted by counsel for appellee that there is no conflict of title between the plaintiff and the defendants; that the jilaintiff claims the one thousand acres and the defendants claim that they cut timber only on the five hundred acre tract claimed by them, and that it is no part of the one thousand acre tract; but the plaintiff’s bill alleges “That the defendant, Foss F. Stout claims title to a small portion of said tract of one thousand acres, and he designates on the map filed herewith the portion so claimed by the said defendant; that he does not know the source of title of the said Stout, if any in fact there is-, and he here charges that the said Stout has no valid claim or title to said one thousand acres or any part thereof.” This allegation clearly discloses the fact of a conflict of title, and the evidence adduced by the plaintiff in the deposition of J ohn B. Dunlap and of Albert Lynch tends to show that the defendants cut some timber within the boundary of the one thousand acres claimed by plaintiff. The defendants claim that they were only cutting timber upon the five hundred acre tract, of which McFarland had good and valid title and in fact the only title, and that he and those under whom he claimed had had adverse possession thereof for more than ten years — ever since the 10th day of September, 1873. There is no proof offered on the part of plaintiff as to his possession of the thousand acres of land. When plaintiff’s witness John B. Dunlap was asked if he saw any improvement being made on said land or observed any cut
Defendants deny emphatically that plaintiff has any title whatever to, or ever had any kind of possession of the said five hundred acres claimed by defendants, or any part thereof, and deny that they cut any timber except upon their said tract of five hundred acres. Plaintiff proves no actual possession of any part of the five hundred acres, nor indeed of the one thousand acres. There is no distinct or clear allegation of the insolvency of the defendants or any of them. Plaintiff says he knows nothing of the solvency of the defendants except from information and belief and from such information and belief he charges that if damages could be properly ascertained and computed the defendants nor either of them would have sufficient money or means out of which plaintiff could be reinbursed — a rather feeble allegation of insolvency. However, the evidence is clear and distinct and removes all doubt, if the allegation of the bill raised any doubt, as to the solvency of the defendants, their solvency being clearly established by the evidence. In Lazzell v. Garlow, cited, (syl. pt. 2), it is held: “As a^general rule, an injunction should not be granted to restrain a mere trespass to real property, when the injury complained of is not destructive of the substance of the inheritance, — of that which gives it chief value, — or is not irreparable, but is susceptible of complete pecuniary compensation, and for which the party may obtain adequate satisfaction in the law courts; and in no such case should it be granted in the absence of an allegation of the insolvency of the defendant.” In case at bar we have a clear cut case of conflict of title — no proof of possession by plaintiff, a mere semblance of allegation of insolvency, and the solvency of the defendants clearty established by proof; with no allegation that an action at law has been in
For the reasons herein stated the judge of the circuit court of Webster county erred in overruling the motion to dissolve the injunction and continuing the same in force, and the same is therefore reversed and annulled and this Court proceeding to render such decree as the judge of the circuit court should have rendered, hereby dissolves the injunction granted in the cause, and the same is remanded to the circuit court of Webster county with directions to dismiss the bill unless plaintiff can show good reason to the contrary.
Renamed.