92 W. Va. 104 | W. Va. | 1922
This appeal is from two decrees, the first entered on the 8th of November, 1921, which recites that upon consideration of the case upon all the orders, decrees, proceedings and evidence, the court was of opinion, for reasons stated in writing and made a part of the record, that the cause was for defendants and that the injunction be dissolved and plaintiff’s bill dismissed. Thereupon plaintiff asked leave to amend his bill, and tendered and asked leave to file same, and at the same time, on the law side of the court, tendered and asked leave to file his declaration in ejectment against the defendants. The decree then permitted the amended bill to be filed, and gave plaintiff leave to file a declaration in ejectment on the law side of the' court, and remanded same to rules to be', matured for trial; but it allowed the amended bill to be filed and process issued thereon only upon the condition that the plaintiff pay to defendants. the costs which had been incurred to date, and" gave recovery thereof in favor of plaintiff and against defendants, required payment thereof within thirty days from the rising of the court, but upon failure to pay same within that time the decree further adjudged that the injunction should -be dissolved and the cause stand dismissed at plaintiff’s costs. The other decree, that of the 22nd of December, 1921,' brought the cause on again to be heard, dissolved the injunction, dismissed the bill and awarded execution for the collection of the costs, because thirty days had expired from the date of the other
The sole question presented for decision is whether the lower court had jurisdiction to require payment of costs as a condition precedent to-filing the amended bill, and dismissing plaintiff’s bill upon failure so to do; and if the court had jurisdiction to require payment of costs as a condition precedent, then has it abused its discretion?
The litigation arises over an interlock of eighteen or twenty acres from which defendants were cutting and removing timber at the time of the institution of the suit. Plaintiff had obtained a deed in 1906 for 381 acres from Conrad, which set out the- boundary of land, and the bill, which exhibits this deed, avers that plaintiff believed his title to the land was regularly derived from the Commonwealth of Virginia. Plaintiff also avers, upon information and belief, that Emma C. Scott, C. IT. Scott, Edna S. Kump and H. G-. Kump, defendants, claimed to be owners of land in the vicinity of his tract and had sold the timber thereon to defendant, Wilson Lumber Company, and in locating the boundaries of their land had included a large part of the plaintiff’s land, upon which the Lumber Company had entered and begun severing and removing the timber therefrom under its purchase. The bill prayed for an injunction to prevent the cutting and removing of the timber, asked for an accounting for the timber already severed; and that .the'boundary of plaintiff’s land be ascertained and his title confirmed to him. The injunction was promptly awarded. The bill was presented in the - latter part of January, 1921, and on the 31st of March, 1921,. defendants filed demurrers thereto, alleging- several grounds, among which was that the bill admitted that the defendants were in possession of the land and severing the timber therefrom, but did not allege that the plaintiff had instituted or was about to institute an action of ejectment or other appropriate action at law, to try the title and adjudge the rights of the parties.- The motion to dissolve the injunction was overruled, and defendants answered fully, setting up their title to the land in controversy, exhibiting therewith deeds
The above statement shows that plaintiff at the time of filing the bill knew or had reason to know that the Scotts and Humps claimed title to and had possession of, the interlock of the eighteen or twenty acres which is in controversy. On' the 31st of March, when the demurrers and answers were filed, it was plainly apparent that there was a serious controversy over the location of the western line of plaintiff’s land.
In order for a plaintiff to maintain an injunction for cutting timber from his land by a defendant, there must be certainty of title in the plaintiff to give equity jurisdiction. If the title is dependent upon a question of fact, which a jury should decide, the bill must aver the intention of plaintiff to institute an action in ejectment or {hat one has already been instituted before equity will enjoin. Pardee & Curtin Lbr. Co. v. Odell, 71 W. Va. 206. If. the location of a-line or the question of adverse possession depends upon conflicting testimony, these are issues of fact to be determined by a jury. In such cases the jurisdiction of equity is properly invoked, not for the purpose of determining the title, but only to preserve the subject matter of the controversy in statu, quo, until the action of ejectment is tried. By far the greater part of the costs were incurred after it had become plainly apparent that equity did not have jurisdiction to settle the controversy, but only to preserve the timber until the title could be determined in the proper forum. Did the court
Generally, statutes of amendments leave the question of costs to the discretion of the court, and its action in that regard is not subject to review, unless there has been a clear abuse of discretion. 15 C. J. 64, see. 107, title, “Payment of costs as condition precedent to amendment.” A court of equity has power and discretion to award costs, an inherent power recognized by our statute chap. 138, sec. 10. But it is argued that the lower court did not have power to penalize plaintiff by prescribing payment of costs as a precedent to the exercise of its jurisdiction, and having exercised such power has abused its discretion, which this court should correct, although that is the only error committed; citing Ross v. Gordon, 2 Minn. 289; Peers v. Barrett, 12 Grat. 410; Goodloe v. Woods, 115 Va. 540; and Barnett v. Spencer, 2 H. & M. 7. In the Ross case, cited, it was held that the lower court had erred in adjudging costs against the plaintiff in an injunction suit where he had substantially prevailed^— an abuse of discretion. In Peers v. Barnett, land had been sold in 1828 and a bond given with condition to perfect the title. In 1834 the' vendor sued to collect the purchase money, and vendee answered that title had not been perfected. The
We are of the opinion that the court had power to impose upon plaintiff the payment of costs as a condition precedent to filing the amended bill, especially as it was tendered after the cause had been submitted and decided; and under the facts disclosed we do not find that there was a clear abuse of discretion in so doing.
Affirmed.