87 N.C. 224 | N.C. | 1882
The contest between the parties is about certain walnut trees to which both parties claim title.
The plaintiff sues for a specific performance of the contract set out in the complaint and for damages for a breach thereof, and that the defendants in the meantime be enjoined from cutting and carrying away the walnut timber described in the complaint, until the plaintiff shall have removed the trees claimed by him.
Whether the title to the trees passed by the contract between (227) the plaintiff and Rinehart, is an immaterial inquiry in the case. For conceding that the contract was an absolute sale of the trees to the plaintiff, he is not entitled to the extraordinary remedy he seeks.
It has been to often decided by this court, to be any longer an open question, that the extraordinary power of the courts will not be exercised to restrain the cutting of trees, other than those for ornament, or any other trespasses to real property, except where the injury will be irreparable, and not compensable in damages in consequence of the insolvency of the trespasser.
The allegation of the complaint that the defendants are insolvent, is an essential averment, without which an injunction will not be granted, except in some special cases where it is made to appear that the injury will be irreparable, even when the defendant is solvent. McCormick v. Nixon,
In the case before us, there is no allegation that the defendants are insolvent, or that the injury sought to be enjoined will be irreparable. But on the contrary, the uncontradicted proof is that the defendants are solvent. There is no reason why the plaintiff, if he has title to the trees, may not receive full compensation in damages for any loss resulting from the acts of the defendants.
This case is distinguished from the cases of Troy v. Norment,
Our opinion therefore is, that there is no error in the ruling of his Honor in refusing to grant the injunction prayed for in the plaintiff's complaints. Let this be certified to the superior court of Haywood County that further proceedings may be had according to law.
No error Affirmed.
Cited: Dunkart v. Henry,