85 F. 814 | U.S. Circuit Court for the District of Western Virginia | 1898
In this cause, on the 8th day of November, 1897, the plaintiff filed his bill, alleging that he is the owner in fee, and in actual possession, of a tract of land commonly known as the “Robert Morris 500,000-acre grant,” located partly in Buchanan county, Va., and partly in the states of Kentucky and West Virginia. He
“Charleston, W. Va., Sept. 3d, 1897.
•‘Andrew W. Campbell, Esq., Hurley P. O., Va. — Dear Sir: Reports reach me to the ’effect that you are preparing to cut the timber on the lands that you recently purchased from 1. N. Watkins and to put a large force of men in for that purpose. 1 understand, also, that you have stated that you had compromised with Mr. King, or had secured his permission to cut this timber. This, of course, you know is not true, and has no possible basis whatever, and I do not credit this last report. I wish to reiterate to you what I stated in my eonversátion.with you upon the train some weeks ago, to Hie effect that Mr. King claims and; owns this .land as part of the Morris 500,000-acre grant, and that*817 Mr. Watkins had not, nor have you, any title whatever thereto, and that long prior to your pretended purchase an action of ejectment was brought against Mr. Watkins, and an injunction secured against him and the other parties to the suit, prohibiting them from cutting timber on tills grant. Of this you confessedly had full knowledge when you went into this matter, and purchased the lawsuit with your protended deed for the land, and title to the lawsuit is the only title that passed by the deed. You have thrust yourself voluntarily into this matter, knowing- the land to belong to Mr. King, and to be in litigation, and are entitled to no indulgence or consideration whatever from the court. Of this you have been aware from the very beginning-. These facts, however. I desire to emphasize to you, and impress upon you that if it is possible, through the court, to prevent your cutting or removing any timber from the land, or to make you answer in contempt for violating the existing injunction, if you do cut it, Mr. King will make every effort to that end. All of Pawpaw creek and ail the waters of Knox creek westward, across the state line to Peter creek, is a pari; of the Morris grant, as you have long been advised, and all that portion thereof in Virginia is involved in the aforesaid suit. I trust that the report that you are preparing to cut this timber is not true, but, lest it may be, I hasten to give you further warning- not to meddle -with the same.
“Very truly, M. P. Stiles, Attorney for H. O. King.
“(Dictated-.)”
The prayer of the bill is that the defendants be restrained from further cutting timber on the lands, and from «¡moving or disposing of any timber already cut thereon, and from trafficking in timber cut or to be cut upon said land; that the plaintiff be decreed to have and receive the timber cut by the defendants, or the proceeds thereof, and be awarded damages against defendants for cutting said timber; and' for the appointment of a receiver to take charge of the timber cut, and preserve the same, pending the hearing of this cause. On the filing of the bill a temporary injunction was granted on the 8th day of November, 1897, in accordance with the prayer of the bill, and a rule awarded requiring the defendants to show cause why a receiver should not be appointed to take charge of and dispose of the timber already cut by the defendants on the land claimed by the plaintiff', said rule being returnable on the 19th day of November, 1897. For some reason, not shown in the papers, this rule was hot executed, and the matter was continued from time to time until the 31st day of December, 1897, when, on application and affidavit filed by the defendant A. W. Campbell, the restraining order was, on execution of a bond in the penalty of $2,000, suspended until the 7th day of January. 1S98, at which time the cause should be further heard at an adjourned term of this court to be held at Abingdon. At the court held at Abingdon on January 7th the defendant A. W. Campbell filed his answer to the bill, and moved a dissolution of the preliminary injunction. On the coming in of this answer the complainant filed an amended bill, to which the defendant A. W. Campbell filed an answer, and objections. The defendant A. W. Campbell denies, in general terms, that the plaintiff is in possession of, is the owner of, or has the fee-simple title to the land mentioned in the hill upon which the defendant has been cutting timber, and avers that the title of the same is in himself and one John II. Dotson. Denies that the plaintiff’s title has been sustained by repeated adjudications of this court and of the circuit court -of the district of West, Virginia, and that the plaintiff has title to the 500,000 acres of land claimed under the
“This deed, made this 6th day of July, 1897, between J. N. Watkins and Lydia J. Watkins, his wife, of the county of Buchanan and state of Virginia, parties of the first part, and John H. Dotson and A. W. Campbell, of the second part, witnesseth, that for and in consideration of eleven thousand dollars, $5,500 of which is in hand paid, the receipt whereof being hereby acknowledged, the residue to be paid in one and two equal installments, in one and two years, of $2,750 each, not bearing interest from this date, the said parties of the first part do grant unto the said parties of the second part the following described land, to wit: One tract lying on waters of Pawpaw, of Knox Creek, of Tug river, in Buchanan county, Virginia, patented to Shadrick W. White and John N. Watkins on Sept. 1st, -1862, containing 1,117 acres, be the same more or lessf said patent being of record in the land office in the city of Richmond, in Book 110, page 810. Reference is here made to the said patent for a more particular description of line, courses, corners, etc. Also a tract of land, containing 33 acres, more or less, lying in -said Buchahan county, Virginia, on the Race Pork of Knox creek, patented in the name of William Estep, on the 31st day of October, 1848, and recorded in the office of the register of the land office in the city of Richmond, in Book 101, page 98. Reference to said patent is here made for a more particular description of the said survey. Also a tract containing 127 acres, lying in Buchanan county, on the Race Pork of Knox creek, and the waters of Pawpaw creek, of Knox, said land patented on the 1st day of July, 1856, to Uriah' Estep. Said patent is of record in the office of the register of the land office in the city of Richmond in book-. Reference is here made to the patent for a more particular description of the said land as to courses, distances, corners, etc., the same containing 127 acres, more or less. Also one undivided interest in a tract of five hundred, or five hundred and six, acres, be the same more or less, patented in the name of Shadrick W. White; John N. Watkins, and Pricey King, now Pricey Puller, lying on the waters of Pawpaw creek, waters of Tug river, in Buchanan county, Virginia. Reference is here made to the said patent for a more particular description of the said land. Also all the lands I now own in all patents in the name of Uriah Estep, and conveyed by him to White & Watkins, the same at hazard as to quantity. These several tracts contain all the lands of J. N. Watkins on the Paw Porks and Race Pork, the waters of Tug river, and this deed is intended to include all the lands of the said parties of the first part on said creeks and waters of same, and" on Home creek waters of Louisa river. It is further covenanted in this deed, that the said J. N. Watkins and he hereby does retain a vendor’s lien on the'said lands for the deferred payments mentioned. The quantity of land hereby conveyed is supposed to contain 1,700 acres, but, be the same more or less as to quantity, all taxes, on and after the date of this deed, to be assumed and paid by the said parties of the second part, and that the said part— of the second part shall have quiet possession of the land and premises hereby conveyed, with covenants of special warranty.
“Witness the following signatures and seals:
“J. N. Watkins [Seal.]
“Lydia J. Watkins [Seal.]”
Tte answer further denies the pendency of an action of ejectment in the name of the plaintiff against J. N. Watkins, the defendants’ vendor, for the recovery of the land in controversy. It denies the
The answer further says:
“Your respondent is advised that after the plaintiff has waited until he has been put to the great expense and outlay above mentioned and set out, and that after the extensive operation which lie has started, and now has at work, upon these lands, all of which the plaintiff has been cognizant of, and that after all of the timber has been severed from these lands, that the plaintiff will not be permitted to seek the aid of a court of equity, and that a court of equity will not grant him relief, because the timber is personal property, and the plaintiff has his plain, clear, and adequate remedy at law. Even if it should have been upon the lands of the plaintiff, and therefore a trespass, the same having been completed, the timber having been severed from the freehold, respondent is advised that the plaintiff would be put to an action at law. Especially will the court refuse to grant any aid whatever, under the circumstances above detailed.”
The answer further avers that in an section of ejectment heretofore tried on the law side of this court, in which H. O. King was plaintiff and the Sandy River Land Trust was defendant, the verdict of the jury fixed the lines of the plaintiff outside of the boundary lines as claimed by the plaintiff under the Morris survey.
The prominent question presented by the foregoing state of facts is the power of this court to enjoin the defendants from cutting the timber on the land in controversy pending the trial of the title at law, in the action of ejectment brought by the plaintiff against J. N. Watkins and olhers before said Watkins sold the land, in July, 1897, to the defendants Campbell and Dotson. This question has been so often passed upon by some of the circuit courts of this judicial circuit, and their decisions sustained by the circuit court of appeals, that the question is no longer an open one. It is clearly the duty of a court of equity to preserve the property in statu quo until the rightful owner of the property can be determined by the trial of the title at law. On this question the circuit court of appeals in Buskirk v. King, 18 C. C. A. 418, 72 Fed. 22, held: “If the mischief complained of is irremediable, and destroys the substance of the property, as is the case of cutting timber and extracting ores, an injunction will issue in order that the property may be preserved from destruction during such time as may be necessary to try the title at law.” In the same