45 N.C. 39 | N.C. | 1852
The plaintiff owns a large tract of land in "Quitsney pocosin," and valuable only for the timber. He alleges that the defendants have trespassed on his land, and have cut thereon a large quantity of valuable timber; that he has instituted an action at law for the trespass, which is still pending; that the defendants have now on hand 200,000 shingles got off his land; that they are in doubtful circumstances, if not insolvent; and he therefore fears they will not be able to pay the damages which he expects to recover in his action at law. The prayer is, that the defendants be restrained from further *47 trespassing, and be also restrained from selling the shingles, until the question of title to the land where the shingles were got, is decided.
The defendants say they have a right to get shingles on the Taylor grant, which adjoins the plaintiff's land; but that the part of the Taylor grant where they have been getting shingles, is at least one-half mile from plaintiff's land. They say further, they have a license to get timber on the (40) lands of one Bond, which also adjoins the plaintiff's land; but they are certain they have not crossed the line, because they have had the lines run by one Phelps, a competent surveyor; and "the plaintiff, being informed that the lines were to be run, said that he would be satisfied with the running, and would be willing to asquiesce in the result thereof." They do not, however, aver that the plaintiff had notice of the time when the lines were to be run, or that he took any part in making the survey. They thereupon aver broadly, that theyhave not cut a tree, or got any timber on the plaintiff's land. In regard to the allegation of insolvency, they simply say, "they are perfectly able to pay any damages which it is possible for the plaintiff to recover in his suit at law." — His Honor dissolved the injunction, we suppose, on the ground that the plaintiff's "equity was denied" by the averment that the "defendants had not cut a tree, or got any timberon the plaintiff's land;" and that, in regard to the allegation of insolvency, the answer was full, because, if the plaintiff had sustained no damage, it was a matter of indifference whether the defendant were solvent or insolvent. (41)
His Honor fell into error by not adverting to the distinction, which we have attempted to point out in Capehart v. Mhoon, ante 30, between injunctions to stay the collection of money on a judgment recovered at law, and injunctions to stay waste, or injuries in the nature of waste, where the damages are irreparable. In the one, the injunction is dissolved, as a matter of course, upon the coming in of the answer, unless the equity is confessed; or, according to our practice, unless the answer is defective in not responding to a material allegation, or is unfair or evasive, so that exceptions to it would be sustained. In the other, a different rule is acted on, and inasmuch as to dissolve the injunction would be to allow the injury to be done, (and in the forcible words of one of the Chancellors, *48 "a tree that is cut down, cannot be made to grow again,") where the plaintiff fails to elicit from the defendant a discovery, which admits the allegations of the bill, the bill is allowed to be read as an affidavit on the part of the plaintiff. And if, upon the whole case, the matter is left doubtful, the injunction will be continued until the hearing, so as to give the plaintiff a chance to support his allegation by proof, before a thing, the consequence of which is irreparable, is allowed to be done.
"For the purpose of opposing a motion to dissolve the common injunction, affidavits are never allowed to be read to contradict the answer. A distinction was however adopted at a very early period, in regard to injunctions restraining certain wrongful acts of a special nature, as distinguished from the common injunction for staying proceedings at law." "And it may be stated to be, at the present day, the settled practice to permit affidavits to be read in opposition to the answer, at certain stages of the proceedings, in cases of waste, and of injuriesin the nature of waste; for the mischief is irreparable; the timber, if cut, cannot be set up again: — in other words, the mischief, if permitted, cannot be retrieved." Drewry on Injunctions, 429. In accordance with this principle, which is a very plain and just one, it was held in McDaniel v. Stoker,
As was said in Purnell v. Daniel, "Here then is a (43) case of disputed boundary — how can we decide it without proof?" Are the defendants to be allowed to go on and cut timber before the dispute is decided, merely because they are of the opinion that the line of plaintiff has not been crossed? Are they to be allowed to sell the shingles which, it may be, were taken off the plaintiff's land, upon the averment that they have done the plaintiff no damage, and are therefore perfectly able to pay all he can recover in his action at law? Certainly not. The bill, taken as an affidavit of the plaintiff, shows that he believes that he has been trespassed upon; he has instituted an action at law to try the question; and as the shingles are now under the control of this Court, the fund will be protected until the dispute about the boundary is decided. As little as the defendants could have done, would have been to accompany their answer with an offer to give bond and surety for the value of the shingles, if allowed to sell them, upon a suggestion that the shingles may be injured by the weather, if not disposed of; but no offer of the kind is made — the defendants content themselves with a general averment that they are able to pay all that the plaintiff can recover.
The injunction ought to have been continued until the hearing, and the order for its dissolution must be reversed. This opinion will be certified.
PER CURIAM. Decree below reversed. *50
Cited: Wright v. Grist, post 206; McNeely v. Steele, post, 244; Thompsonv. Williams,