7 W. Va. 223 | W. Va. | 1874
Plaintiff presented his bill to the Hon. George Loomis, then judge of the ninth judicial circuit, as organized by the act of July 17, 1868, though the same was addressed to the Hon. Pobert S. Brown, then judge of the circuit court of Boane county, praying that defendants, and each of them, and their agents, be enjoined from clearing, cutting timber upon or trespassing on the land in the bill mentioned; and, also, from removing from the land the timber that they or either of them, have cut, or caused to be cut thereon. And on the 10th day of May, 1871, judge Loomis granted the injunction, as prayed for, to take effect on the plaintiffs filing bond, with good security, in the penalty oí five hundred dollars, conditioned according to law. Afterwards, on the 16th day of May, 1871, the plaintiff filed his bill of injunction, in the clerk’s office of Koane county, gave the required bond with security, and caused a summons with the restraining order endorsed thereon, to be duly issued upon the bill, against the defendants, returnable to the first Monday in June thereafter. The summons was duly executed upon the defendants and returned. From the order of the judge granting the injunction the defendants to the bill appealed to the Supreme Court of Appeals, as they then lawfully might; and the case was pending in the Supreme Court of Appeals, on the first day of January, 1873. The appeal wss perfected on the ,-day of May, 1871.
I now proceed to consider this cause upon its merits. The plaintiff, in his bill, alleges, substantially, that he-received, in 1868, a conveyance for eight thousand acres-of land in Roane county from one McFarland; that in August, 1870, the jury, in an action of ejectment, then-pending in the circuit court of Roane county, wherein he was plaintiff and William Ferrell, and William John-Hall, John Sarver, Marshall Clarkson, John W. Webb, Isaac Post and Marshall Depue, were defendants, found the said defendants not guilty, and found for the plaintiff, the residue of the eight thousand acres, described in the declaration, and not being conveyed, prior to the-conveyance of 'McFarland to plaintiff that the court entered judgment on the verdict; that he (plaintiff) charges that since the rendering of said verdict, and judgment, William Ferrell, one of the defendants, to the action of ejectment, who claimed no interest whatever, and occupied no part of the land in said declaration described pretends, that since the judgment aforesaid, he has bought four hundred acres of said eight thousand acres, from B. H. Smith; that the four hundred acres were never conveyed at any time to said B. H. Smith, or to any one else whose interests therein are adverse to the claim of plaintiff; that the four hundred acres are a part of the eight thousand acres aforesaid, and was found to be his by the verdict of the jury, and judgment of the court that he (plain(.iff) charges that said William Ferrell ha forcibly wrested the possession of the said four hundred acres, which lies in the north-east corner of the eight thousand acres, on Hays' Fork of Henry's Fork of the West Fork of the Little Kanawha river, from plaintiff; that Ferrell has fenced in about thirty acres of said land and has cut, and is on said four hundred acres, cutting and destroying, both within and without said enclosure, large quantities of the most valuable timber
By the mere reading of the bill, it is manifest that it fails to allege or aver sufficient material elements or facts necessary to entitle pláintiff to invoke the interposition and aid, of a court of equity by process of injunction, or otherwise. “The objection to the injunction, in cases of private trespass, except under very special ■circumstances, is, that it would be productive of private inconvenience, by drawing cases of ordinary trespass within the cognizance of equity and by calling forth, upon all occasions, its power to punish by attachment, 'fine and imprisonment, for a further commission of trespass, instead of the more gentle common law remedy by action and the assessment of damages by a jury. In ordinary cases, this latter remedy has been found amply 'sufficient for the protection of property; and it has not 'been thought advisable, upon any principle of justice or
In the case of Anderson v. Harvey’s heirs, 10 Graft. 398; judge Daniel in delivering the opinion of the-court says: “I think it is clear that, at the time of the alleged trespass on the ore bank, by the appellant, the-appellees must be regarded as in possession of it, with a clear and incontestible title, they might have instituted their action of trespass against the appellant; but were: not bound to do so before or instead of applying to a. court of equity to restrain the appellant from commuting-further trespasses on the property in dispute. Were they bound to litigate and discuss, in a court of law,, rights, which had not only been adjudicated as far back as 1807, but which had been solemnly recognized in the: conveyances to which the appellant must necessarily refer as the sources of any title which he could assert ? I think not. The practice of courts of equity of interfere-ing in such cases by way of injunction, is one compari-tively of recent origin, but the jurisdiction is now. fully recognized and well established by' cases both in England and America. Mitchell v. Dors. 6 Ves. (Jr.) Ch. 147; Hanson v. Gardiner, 7 Ves. (Jr.) Ch. 306; Thomas v. Oakley, 18 Ves. (Jr.) Ch. 184; 3 Daniel
For these reasons, the order of the judge, in granting the injunction in this cause, and dated the 10th day of May, 1871, must be reversed and annulled, and the appellants recover their costs in this Court expended. And the plaintiff's bill must be dismissed. •
INjunction Dissolved AND Bill Dismissed.