55 S.E. 304 | N.C. | 1906
The plaintiff brought the action to restrain the defendants from trespassing on the land described in the complaint by cutting and removing timber therefrom, some of the defendants having a large plant and being engaged extensively in the timber business. The Court granted an injunction to the hearing and the defendants appealed. The plaintiff claimed to be the owner of a large body of land in Dare County, which was granted to John Gray Blount, 7 September, 1795, and said to contain 100,000 acres, according to the quantity given in the grant, (413) but in fact a much larger acreage, that is, about 167,500 acres. The grant is said to embrace all of the county of Dare, except Roanoke and perhaps Durant Island and the Banks. It contains an exception, as to senior grants and entries, which is thus stated in the grant: "Within which bounds there hath been heretofore granted 22,633 acres, and is now surveyed and to be granted to Mr. George Pollock, 9,600 acres of which begins at Samuel Jackson's *333 northeast corner of 2,000 acres grant on Mill Tail and runs south and east for complement." As the context shows that the word "of" was evidently inserted in the copy by mistake, we have compared it with the original in the office of the Secretary of State and find this to be so. A correct copy is set forth in Manufacturing Co. v. Frey, 112 N.C. at p. 159. The word "of" should be stricken out and the comma should be placed after the word "acres" and before the word "which," instead of after the word "Pollock" and before the figures "9,600," so that the exception when properly quoted will read: "Within which bounds there hath been heretofore granted 22,633 acres, and is now surveyed and to be granted to Mr. George Pollock 9,600 acres which begin at Samuel Jackson's northeast corner of 2,000 acres grant on Mill Tail and runs south and east for complement." The plaintiff asserted title to the entire body of land covered by the said grant, with which it claimed to have connected itself by mesne conveyances. The defendants denied they had committed any trespass on land alleged to be owned by the plaintiff and contended here that the plaintiff had not shown any such trespass by the proof, and further, they averred that they have cut no timber except on land which is either excepted in the Blount grant under which the plaintiff claims, or the title to which as being in the defendants, or those under whom they claim, the plaintiff is estopped to deny, the title to the said lands having been fully adjudicated, and as to some of them the location fixed, in judicial proceedings by which the plaintiff is in law bound and concluded. The two defendant companies disclaim any title to the land in dispute and deny (414) that they have cut any timber on the same or on any land of the plaintiff, or that they have ever authorized any one else to do so, but aver that they have not recently been engaged in the business of cutting timber in Dare County. The plaintiff alleges that all of the defendants are operating under the name of the Buffalo City Mills, Incorporated, and have changed their business name from time to time for the purpose of defeating the process of the Court, and thereby escaping liability for their unlawful trespasses. This is denied by the defendants and the counter-charge made that the plaintiff is an insolvent foreign corporation and a land speculator; that the title to the land claimed by it is radically defective and its boundaries have not been shown, and that the land claimed to be embraced by its outer lines is occupied by hundreds of people whose titles and right of possession are undisputed and unassailable. The defendant sets forth circumstantially its title to the tracts of land upon which it has cut timber. As to the "McRae Tract" of 5,080 acres and the "Blount-Rodman tract" of 5,000 acres, they allege that the plaintiff is estopped by certain judicial proceedings to deny *334 the title of those under whom the defendants claim and justify their acts, which are alleged to be trespasses, and the defendants deduce their title to these tracts from the State, by showing grants duly issued for the same and judicial proceedings and mesne conveyances, which put the said title in the Buffalo City Mills, Incorporated, Andrew Brown and A. J. Brown, respectively, it being the title under which A. J. Brown claims and his co-defendants so justify. As to the other land, known in the case as the "Pollock tract," the defendant introduced the record of a suit in equity pending in the United States Circuit Court, between the plaintiff and the Buffalo City Mills, Incorporated, and referred specially to the third section of the complainant's bill, in which it is admitted that the said tract of land is not covered by (415) the John Gray Blount patent, but is excepted therefrom, the specific admission being that the exception in that grant, heretofore mentioned, comprises 22,633 acres previously granted, and the Pollock survey of 9,600 acres, for which a grant was to be issued and was in fact afterwards issued to George Pollock upon his entry and survey. This conforms the description of the exception in the Blount grant to what we have said is the correct one. The defendants then show that Pollock's title was thereafter acquired by A. J. Brown, under whom the other defendants, except the two corporations, justify. The plaintiff admitted in this case that it did not own either the McRae or the Blount-Rodman tract, nor does the plaintiff apparently lay any valid claim to the Pollock land, 3000 acres of which it admits has been properly located, though it denies, perhaps, that there has been any correct location of the remainder of that tract or of the McRae and Blount-Rodman tracts. It appears that the grant for the last-named tract which was issued 5 September, 1795, antedates the John Gray Blount patent, issued 7 September, 1795, and the defendants rely on this fact, in addition to the estoppel. There was much testimony taken as to the true location of these three several tracts, the defendants alleging that they had been correctly located and exhibiting carefully prepared maps showing the lines and boundaries, while the plaintiff insisted that they had not been identified by any competent and sufficient testimony, though apparently it does not profess to know or to be able to state where the metes and bounds would be with reference to the lines of the John Gray Blount patent, if they were surveyed and marked on the ground. They simply deny the defendant's location. There was also considerable testimony taken as to the locus in quo or place in which the cutting of the timber was done. The defendant contended that, according to the evidence offered by the plaintiff, the timber alleged to *335 have been cut was standing on the McRae, the Hunning, the Belangia and the Blount-Rodman tracts, the land lying north of (416) the McRae tract, on which the plaintiff alleges there was cutting of timber, being the Belangia tract, and that on the east the Blount-Rodman tract. The plaintiff introduced the record in the case of the EastCoast Cedar Co. v. Peoples Bank of Buffalo, it being a suit for partition, the object of this proof being to estop the defendants (by the decree declaring the parties to be tenants in common) from denying the title of the plaintiff to the land covered by the Blount patent, the assignors of the respective parties to this action having been parties to that suit. The insolvency of the defendant is alleged in the complaint, but denied in the answer.
The Court enjoined the defendants from cutting trees, logs and timber on or removing them from the premises described in the complaint, being the lands covered by the Blount grant, and enjoined both the plaintiff and the defendant from cutting any timber on the lands described in the McRae, Pollock and Blount-Rodman patents, until the true location thereof is established by surveys made under its orders; and from this order the appeal of the defendant was taken to this Court.
As a general rule, a court of equity did not exercise its jurisdiction so as to enjoin offenses against the public or civil trespasses. The rule as to the former seems to have been without exception (Paul v.Washington,
Let us now examine this case in the light of what we have already said. Under the Act of 1885, and even before its passage, it was held that the Court would not interfere with the cutting of timber, if there was no irreparable damage, in its strictly technical sense, and the plaintiff could be compensated in damages; and therefore a bond was required, instead of issuing an injunction, and a receiver was appointed to ascertain and report the quantity and value of the timber cut by the defendant. Notwithstanding the Act of 1885, this Court was still averse to stopping important enterprises by injunction if the plaintiff could otherwise be secured against loss, and in such a case it directed a bond to be given and a receiver to keep the accounts. Lumber Co. v. Wallace, supra; Horton v.White,
We have not discussed the many other questions argued before us and presented in the elaborate briefs, because in view of the admissions and the facts appearing in the case, we do not find it necessary to do so. It has been assumed, and it so appears at present, that the plaintiff is the owner of the title alleged to have been derived from the Blount patent. The questions so ably and learnedly considered in the brief of plaintiff's counsel as to lis pendens, res judicata and the validity of the deed to the plaintiff, which is questioned by the defendant, and other controverted matters, need not be considered at this stage of the case, and the same may be said of the other questions (422) debated by counsel. Both parties seem to have acted in good faith — the plaintiff, as to the claim under the Blount patent, and the defendants as to their claim of the three tracts named in the order.
As to the exception in the Blount grant, it may now be taken as settled law that a party claiming land to be within an exception must take the burden of proving it. Gudger v. Hensley,
We would not pass upon the merits of this controversy, and (423) could not do so when considering an interlocutory order for an injunction to the hearing. The truth of the matter cannot now be known, as a great deal of the evidence is merely ex-parte, and has not been subjected to those tests ordinarily required to elicit the truth. What we have said, therefore, should not be used to the prejudice of either party in the further investigation of the case. It is applicable only to the particular question now being decided and does not relate to the merits as they may finally be disclosed.
The finding and order of the Court below as to the McRae, Pollock and Blount-Rodman tracts of land was erroneous, and is, therefore, reversed, and as to those tracts the injunction will be dissolved, as to both parties. In other respects it will remain in force. One-half of the costs of this Court will be paid by the plaintiff and the other half by the defendants.
Error.
Cited: Lumber Co. v. Smith,