95 Va. 337 | Va. | 1897
delivered the opinion of the court.
It was earnestly insisted on the part of the appellees that a court of equity was without jurisdiction to hear and determine this cause. In this view we cannot concur.
It is very true that a court of equity will not, as a general rule, interpose in the case of a mere naked trespass. There must he something more to call forth its interference. But where the act done or threatened to be done would be destructive of the substance of the estate, or if repeated acts of wrong are done or threatened to be done, or the injury is or would be irreparable, whenever, indeed, the remedy at law is or would be inadequate, a court of equity will put forth its restraining hand and enjoin the perpetration of the wrong and prevent the injury. 3 Pomeroy’s Eq. J., sec. 1357; 1 High on Injunctions, (3rd ed.), secs. 697, 702; 2 Story’s Eq. J., sec. 928; Livingston v. Livingston, 6 John. Ch. 497; Switzer v. McCulloch, 75 Va. 777; and Rakes v. Rustin L., M. and M. Co., 22 S. E. 498.
It has accordingly been held, upon the ground of the inadequacy of the remedy at law, that an injunction will lie in the case of a trespass, where the trespasser is pecuniarily irresponsible. 1 High on Injunction, sec. 356; Musselman v. Marquis, 1 Bush. 463; Spear v. Cutter, 5 Barb. 486; Mulry v. Norton, 100 N. Y. 424; Webb v. Harper, 38 Ga. 641; Hicks v. Compton, 18 Cal. 206, and Morgan v. Palmer, 48 N. H. 338. While mere insolvency would not generally be decisive of the right to grant an injunction, it constitutes in particular cases an important element in determining whether the court in the exercise of a sound discretion should award it, for,- the trespasser being insolvent, the legal remedy, “though theoretically perfect, would be practically fruitless.” And for a similar reason, the non-residence of the trespasser, which is the case
The bill in the case at bar sets out a prima facie case of title in the complainant to the land upon which the acts of trespass, of which complaint was made, were committed, and alleges that the complainants had been in the quiet and undisturbed possession of the land until about three years before, when the defendants, who were citizens of the State of Tennessee, had come upon the land, with force and arms, in order to overcome any resistance, and thrown down his fences, driven their cattle and sheep in large numbers in and upon the grazing and meadow lands, and destroyed his stacks of hay; that from that time on they had greatly annoyed and injured him in the use and enjoyment of his property; and that they had again begun to repeat their acts of trespass by turning their stock into his meadows and destroying his hay, and were committing great depredation and waste upon the land, by cutting and deadening timber, and doing other unlawful acts. - The bill, according to settled principles of equity and numerous precedents, presented a proper case for injunction.
And, where a court of equity has properly acquired jurisdiction, it will, in order to prevent a multiplicity of suits, go on to do complete justice, though in doing so it has to try title, or settle boundaries and administer remedies which rightly pertain to courts of law. 1 Pom. Eq. J., sec. 181; Anderson v. Harvey, 10 Gratt. 386; McArthur v. Clark, 13 Gratt. 683; Bettman v. Harness, (W. Va.) 26 S. E. 271; Miller v. L. & N. R. Co., 83 Ala. 274, and DeVeney v. Gallagher, 20 N. J. Eq. 33.
“Pirst. Does the compromise line of 1802 between the States of Virginia and Tennessee, as located and established by General Joseph Martin, Creed Taylor, and Peter Johnson, commissioners on the part of Virginia, and Moses Pish, General John Sevier, and General George Rutledge, commissioners on the part of Tennessee, lie south or north of the land in controversy?”
“Second. At what point did it actually begin, and in what direction was it actually run and located until it passed west of the land now claimed by complainant, and in controversy in this cause?”
The jury, who were empaneled on the law side of the court, at its next term, to try these issues, after hearing the evidence and arguments of counsel, rendered the following verdict:
“1st. We, the jury, find and decide that the compromise line of 1802-3 runs south of the land in controversy.”
“2nd. The jury further find that the point where that line began is on the summit of Pond mountain, and runs due west beyond the land in controversy.”
The defendants, upon the rendition of the verdict, moved the court to set it aside, and award them a new trial. The court at its next term, being of opinion that the verdict was against
The boundary line between the states of Virginia and North Carolina, as prescribed by their chartered rights, begins at Currituck Inlet, and runs a due west course in latitude 36 degrees and 30 minutes north. This line had been partly located by commissioners representing the twO' states, when, in 1779, Thomas Walker and Daniel Smith were appointed on the part of Virginia, and Richard Henderson and others on the part of . North Carolina to extend and mark the boundary line between these states. They were directed to begin where Joshua Pry and Peter Jefferson, commissioners of Virginia, and Daniel Weldon and William Churton, commissioners of North Carolina, who had run a part of the boundary, had ended their work; and if that place was found to be truly in the latitude of 36 degrees 30 minutes north, then to run from thence due west to the Tennessee river, but if it were found to be not truly in that latitude, then to run due north or south, as the case might be, into that latitude, and thence due west to the Tennessee river. The commissioners, being unable to find the place where the previous commissioners had ended their line on Steep Rock Creek, owing, as they supposed, to so much of the timber thereabout being dead, “proceeded to observation,” in order to fix upon the spot on Steep Rock Creek where they should begin. Hpon taking observation, they ascertained that they were one mile and two hundred and one and a half poles north of the proper latitude. They, therefore, measured off that distance a due south course, and “the beginning of the line was thus fixed to the. satisfaction of all.” After running from that point to Carter’s Valley,
In 1791 both the States of Virginia and Horth Caroina, by legislative enactments, approved “Walker’s” line, and declared it to be the true boundary line between them.
In 1789 the State of Horth Carolina ceded to the United States all the lands situated within the chartered limits of the State “west of a line beginning on the extreme height of the Stone mountain at the place where the Virginia line intersects it”; and in 1796, the territory thus ceded by the State of Horth Carolina to the United States was, by act of Congress, created a state by the name and title of the State of Tennessee.
In the year 1800 the General Assembly of Virginia passed a joint resolution, which, after reciting the difficulties arising from the existence of the separate lines of Walker and Henderson and recognizing that the adoption by Uorth Carolina of “Walker’s” line as the true boundary could only bind her as far as her territorial limits extended on the line of Virginia, and could not affect the territory which North Carolina had pre
These commissioners met together, but “not uniting, from the general result of their astronomical observations,” to establish either of the former lines called “Walker’s” and “Henderson’s”, unanimously agreed, in order to end all controversy on the subject, “to run a due west line equally distant from both, beginning on the summit of the mountain generally known by the name of the White Top mountain, where the northeastern corner of Tennessee terminates, to the top of the Cumberland mountain, where the southwestern corner of Virginia terminates.” They directed the line to be so run by the surveyors, and to be marked with five chops in the form of a diamond, and it was so done. The commissioners made report of their action to the government of their respective States which, in 1803, by appropriate legislative enactments, ratified, confirmed, and established the line so run and marked ss the true, certain, and real boundary between the two States.
It thus appears that the compromise line betweerL the States of Virginia and Tennessee is a straight line, and runs a due west course; that it begins on the summit of the White Top mountain where the northeastern corner of the State of' Tennessee terminates and follows a due west coume to the top of the Cumberland mountain where the southwestern corner of
In 1856 the Legislatures of Virginia and Tennessee passed acts, which, after reciting that the boundary line between them was a due west line, but had become indistinct, uncertain, and to some extent unknown by lapse of time and other causes, provided for the appointment of commissionez’s — two from each State — “to again run and mark the said line,” and where the old marks were gone to erect stone monuments, if there was no growing timber, so that the boundary could be readily identified throughout its whole length. Leonidas Baugh and James C. Black were appointed the commissioners on the part of Virginia, and Samuel Milligan and George It. McGLellan represented Tennessee. They made a report to the governments of their respective States of their proceedings under their comznission, and of the manner in which they had performed the duty assigned to them.
When the commissioners of 1856 met to perform the duty assigned them, they began at the town of Bristol, which was situate on the compromise line of 1802, at a point where there was no controversy as to the location of the line, and from that point they proceeded east, finding the line as mai’ked by the surveyors under the direction of the commissioners of 1802. When they had pz’oceeded as far as Denton’s Valley, about fifteen miles east of Bristol, the marked timber on the straight line gave out, as the commissioners supposed, they nqt being able to find any after a search of several days. While engaged in the search, they learned that there were trees to the north mai’ked like the trees on the line they had been following. Hpon making investigation, they discovered a line marked with five chops, nznning east and west and about one and a half miles
The commissioners state in their report that “under this perplexing state of facts,” they were unable to settle definitely the “northeastern corner of Tennessee” or to establish the beginning point of the line which they were required to trace; that the Virginia commissioners insisted that the line should be extended east from the supposed end of the marked line on Little Mountain to the top of “The Divide,” for the reason that it would be but a continuation of the line from Cumberland Gap, which was to that point about midway between “Walker’s” and “Henderson’s” lines, while the Tennessee commissioners insisted that the northern line as connected by the cross line with the southern should be extended to the summit of “The Divide,” because it was the only unbroken and continuously marked line they had found. Ho conclusive agreement, however, could be reached, and the point of beginning was left an open question.
The report of the commissioners was prompty rejected by the Legislature of Virginia, but ratified and confirmed by that of Tennessee. In the act of Virginia rejecting the report, and in subsequent acts, provision was made for the appointment of other commissioners to re-run and mark the true boundary line, but such action by Virginia met with m> response from her sister State.
It was conceded in the argument that if the line as run by the commissioners of 1856 is the correct location of the boun
Before proceeding to consider the testimony of the witnesses-in the cause, we are met at the threshold with a serious doubt from the record evidence as to the correctness of the offset made from the marked line, as traced by the commissioners of 1856, from Bristol to the place where they diverged north, because such offset is directly at variance with the report of the commissioners of 1802, who established the boundary line, and. described it as a due west line. The offset so made extends-east some fifteen miles from the nothem point of the divergence, and between one and one and a-half miles north of a straight line extended east from the place where the divergence-to the north was made. It would seem unreasonable to be asked to believe that the able and intelligent commissioners of 1802 should have described the line established by them as running a due west course, and failed in so important a matter to mention the offset, a fact so variant from their report, and contradictory of their deliberate statement if the offset really-existed. Hor does any reason anywhere appear why an offset-should have been made, or the straight course departed from.
The correctness of the offset is further rendered doubtful by the fact that the marked timber on this offset line, after running east about fifteen miles, wholly gave out, and no trace of a line, though diligent search was made, could be found east of that point. Bor this, no reason whatever could be assigned, as the marked timber gave out in an unbroken forest, and where-
And this doubt is strengthened by the admission by the commissioners in their report that the triangular territory formed by the offset in Denton’s Yalley was always theretofore recognized by the citizens residing therein as included in the State of Virginia, from which they derived their land titles, in which they voted, were taxed, and exercised all the rights of the citizens of that State; and by the admission that the offset line, though plainly marked from the top of Little Mountain westward nearly to the river, and the cross line at Denton’s Yalley running south 22 degrees west, and connecting the north line and the south line, seem not to have been recognized as the boundary line.
But when we turn to the testimony of the witnesses, there would seem to remain no reasonable doubt of the incorrectness ■of the offset line. It was abundantly shown that the marked timber on the straight line traced east from Bristol did not give ■out at the place where the commissioners of 1856 diverged to the north, but that along a straight line traced east from that point, or west from the old State comer on Pond mountain, there are a number of trees still standing, which bear old marks of five chops in the shape of a diamond; that one or more of these trees had been blocked on different occasions, long prior to the present controversy, and the marks examined; and that when examined, the growth of the timber corresponded with the time that had elapsed since the compromise line was run. On the straight line so marked there was proved to be at least one very notable tree, plainly marked with five chops in the shape of ■a diamond, which tradition, according to the testimony of some very old persons, had always pointed out as being on the compromise line, and had recognized the territory north of it as being in the State of Virginia.
It was also shown that the straight line from Bristol, traced east of the point of divergence of the offset to the north, would pass, according to the marked trees, to the summit of Pond mountain, whereon is the old comer long and generally recognized by citizens of Tennessee, as well as of Virginia, as the corner between the States of Virginia, Forth Carolina and Tennessee; and that if followed west from this corner, it would pass along Main street of the town of Bristol, and thence to the southwestern corner of Virginia on the Cumberland mountain. The northeastern comer of Tennessee, according to the record evidence, is “on the extreme height of the Stone mountain, at the place where the line of Virginia intersects it.” It appears from the testimony that what is locally known as the Stone or Pond mountain is a part of a range of mountains known as the White Top mountains. It also further appears that while the compromise line of-1802 is described as beginning “on the summit of the mountains generally known by the name of the White Top mountain,” no one, either from Virginia or Tennessee, has ever claimed that the northeastern corner of Tennessee is on the summit proper of the White Top mountain, which is locally known as the Old Field or White Top, and is from three to four miles north of the eastern end of the offset line.
That the straight line is the correct location of the true boundary between the States of Virginia and Tennessee, and that the land in dispute lies within Virginia, there would seem
“Walter’s” and “Henderson’s” lines were, as we have seen, more than two miles apart. The compromise line of 1802 was run equally distant from both of them; and the testimony in this cause shows that the line upon which are the trees bearing the old marks of five chops in the shape of a diamond, as proved by witnesses for the appellant, is between a mile and a mile and a-half south of the offset line, while it was further stated by some of the witnesses that there is still another fine about the same distance south of the location of the compromise line as contended for by the appellant, which is supposed to be “Walker’s” line.
The jury found that the line contended for by the appellant was the true location of the boundary between the States of Virginia and Tennessee, from which it followed that the land in controversy was situate in Virginia, and belonged to the complainant.
A court of equity has the right to order in a proper case one or more issues to be tried by a jury, either in a court of common law, or at its own bar. The issue, except where it is directed by statute, is a mere incident to the suit in chancery. It is directed merely to satisfy the conscience of the chancellor, and if he is not satisfied with the verdict, he may set it aside and award a new trial of the issue, or he may disregard it and proceed to
While directing an issue to he tried by a jury is a matter of discretion in a court of equity, it is not, however, a mere arbitrary discretion, but such discretion must be exercised upon sound principles of reason and justice. A mistake in its exercise is a just ground of appeal, and the appellate court will judge whether such discretion has been soundly exercised in a given case. Stanard v. Graves, 2 Call. 369; Reed v. Cline, 9 Gratt. 136; Wise v. Lamb, Id. 294; and Beverly v. Walden, 20 Gratt. 147. And likewise is the action of a court of equity, in approving the verdict of a jury upon an issue and decreeing in accordance with it, or in disregarding it and decreeing against it, equally the subject of review by the appellate tribunal. Southall v. McKeand, 1 Wash. 336; Pleasants v. Ross, Id. 156; and Prior v. Adams, 1 Call. 382.
Where a court of equity, in the exercise of a sound judicial discretion, has, in a proper case, where the evidence relating to a particular fact in dispute is contradictory and evenly balanced, directed an issue to be tried by a jury, it is the practice, without good cause for the contrary course, for the chancellor to abide by the verdict, since it is the peculiar province of a jury to decide a question of fact arising in a cause, and upon the weight of the testimony on which it depends.
In Carter v. Campbell, Gilmer 170, Judge Soane, speaking for the court, says: “As the chancellor had power in this case to direct an issue to try the material fact in controversy between the parties, and there being contrary and conflicting evidence concerning it, the court is of opinion that it ought to abide by the verdict found upon that issue.”
In Foushee v. Lea, 4 Call. 279, the court of law, which tried the issue out of chancery, having certified to the chancellor “that strong testimony was offered on both sides sufficient to have established a verdict in a court of law in favor of either
The evidence in regard to the location of the boundary line was conflicting, and the issues directed by the court were eminently fitted to be submitted to a jury. All the evidence before them on the trial is in the cause, and, while contradictory, it greatly preponderates in favor of the verdict. Indeed, after a careful perusal of the evidence, it is not perceived how the jury could have well come to a different conclusion. We are clearly of opinion that the court should have abided by the verdict, and decreed in accordance with the facts as found by them.
The appellees made the further defence that the offset line as run by the commissioners of 1856 had been judicially declared to be the true location of the boundary between the States of Virginia and Tennessee, and that this matter was now res judicata. Tor this position, the case of Virginia v. Tennessee, 148 U. S. 503, was relied on.
This defence, though not raised by way of answer or plea, nor made in the court below, yet being relied on here, ought, perhaps, to be duly considered before concluding this opinion.
The true location of the boundary being a matter affecting the territorial jurisdiction of the State, it must be conceded that if the State of Virginia be concluded by the decree made in that case, the appellant, who is one of her citizens, would also be concluded Pool v. Fleeger, 11 Peters 185; and Virginia v. Tennessee, supra.
The case of Virginia v. Tennessee was a suit brought by the State of Virginia against the State of Tennessee to have the boundary between these two States established anew, upon the ground that the compromise line of 1802 was not run on the parallel of latitude thirty-six degrees and thirty minutes north, which was originally made by their charters the boundary be
There is a marked difference between the effect of a judgment as a bar or estoppel against the prosecution of a second suit upon the same claim .or demand, and its effect as an estoppel in another suit between the same parties or their privies upon a different claim or cause of action. In the former case, the judgment or decree, if rendered upon the merits, constitutes an absoute bar to a subsequent suit. All those matters which Were offered and received, or which might have been offered to sustain the particular claim or demand litigated in the prior suit,, and those matters of defence which were presented, or which
In the case of Virginia v. Tennessee, supra, the sole issue was as to the validity of the compromise line under the compact .of. 1803. In the present suit, the sole issue, so far as the doctrine of res judicata could have any possible application, is the actual location upon the ground of the compromise line of 1802.
■ The issues are essentially different. The decision in that case in no wise constitutes a bar to the judicial determination of the issue in this case.
The allegations of the bill being, in our opinion, sustained by the testimony in the cause, our conclusion is that the decree appealed from is erroneous. It must, therefore, be reversed, and a decree entered by this court, as should have been done by the court below, perpetuating the injunction awarded the complainant, and adjudging costs against the defendants.
Reversed.
