154 Ark. 328 | Ark. | 1922
(after stating the facts). The general rule in this State is that equity will not grant relief iby in-' junction against the cutting of timber unless it is shown that an irreparable injury to the property will result, or that the destruction of the timber will render the freehold less susceptible of enjoyment, or that the acts of trespass are of a nature to constitute a nuisance, or that the defendant is insolvent. Meyers v. Hawkins, 67 Ark. 413, and Hall v. Wellman Lumber Company, 78 Ark. 408.
The decree of the chancellor was based upon his belief that the facts alleged in the complaint brought the case within the general rule just announced?.
We cannot agree with the learned chancellor in this conclusion. According to the allegations of the complaint, the levee district purchased the lands in question .at a foreclosure sale in chancery for the nonpayment of the levee taxes, and received a certificate of purchase. The lands are chiefly valuable for the growing timber on them, and the defendant commenced to cut .and remove the timber from the lands during the period of time for redemption under the statute allowed the original owner of the lands. The defendant threatened Ho continue his trespass in cutting and removing the timber from the lands. Without confirmation, a sale made by a commissioner under a decree of court is not complete so as to pass the title to the lands sold, and the sale may be set aside upon valid grounds. When, however, a confirmation of the sale is made, all objections thereto are concluded, and the rights of the purchaser springing therefrom relate back to the date of the sale which was made by the commissioner. Robertson v. McClintock, 86 Ark. 255, and Brasch v. Mumey, 99 Ark. 324.
The trespasses in the present case were committed during the time for redemption allowed the original owner of the lands.
During the statutory period of redemption the levee district had no right to the possession of the lands, and therefore no remedy at law against the defendant during this period of time for cutting and removing the growing timber from the lands.
In the first case cited above, injunctive remedy was denied because the plaintiff’s remedy at law was adequate and complete. On this point the court said:
“They can sue in ejectment for possession of the land, recover the timber already cut, and that may be cut, in replevin, if it can be found, and, in case the timber already cut has been removed and cannot be found, they can recover its value; for it does not appear that appellee is insolvent.” Meyers v. Hawkins, 67 Ark. 413.
In Hall v. Wellman Lumber Company, 78 Ark. 408, an injunction was granted to the plaintiff on the ground that his remedy at law was not adequate and therefore his loss would be irreparable. The peculiar facts of that case were that the plaintiff had purchased the timber from the owner of the land and had erected a mill near the land to manufacture the timber into lumber. Its loss could not be compensated by the market value of the timber, and on this account it was held that its remedy at law was inadequate.
As we have already seen, insolvency is an element in determining whether or not the court should act in granting an injunction in a case like this. It is also manifest, from the cases cited, that any injury of such a peculiar nature that compensation in money cannot atone for it will be considered an irreparable injury .and therefore remediless at law. An adequate remedy at law means a present remedy, and not one that might be exercised at some time in the future. For instance, in the present case the defendant might cut and remove all the timber from the lands and leave the State, or become insolvent, during the statutory period for redemption given the owner. It is true that when the period of redemption has expired without that right having been exercised by the owner, the rights of the purchaser will relate back ■to the date of the sale, but in the .meantime the defendant will have denuded the lands of the timber, and the plaintiff would have no redress at law. The complaint shows that the chief element of value to the lands is the growing timber on it. Therefore, the remedy of the plaintiff at law would be inadequate and incomplete, and his loss would be irreparable.
This brings the case under the general rule that an injunction will lie to restrain trespass in cutting and removing timber from land where the injury done or threatened would result in irreparable loss to the plaintiff.
It follows that the decree must be reversed, and the cause will be remanded, with directions to overrule the demurrer to the complaint, and for further proceedings in accordance with the principles of equity.