138 Tenn. 21 | Tenn. | 1917
delivered the opinion of the Court.
The bill in this case was filed for the purpose of quieting the possession to a small parcel of land of about four acres, which the complainant claims he was in actual possession of, and that defendant had been interrupting that possession by tearing down his fences. The defendant answered, asserting title in itself and denying the allegations as to the complainant’s possession, but admitting that he had, from time to time, endeavored to put a fence on certain parts of the land, and that this fence had been removed by its orders. The chancellor decreed in favor of defendant and dismissed the bill. On appeal to the court of civil appeals that decree was affirmed, and the case was then brought here by the writ of certiorari.
“Since the disuse of the common-law actions of waste and estrepement, the more easy and complete mode of proceeding hy bill in equity, to stay waste, either threatened, or which the party is in the act of committing, and for an account of such as may have already been done, has been particularly favored by the courts, both in England and in this country” and a quotation is made from Kane v. Vandenburgh, 1 Johns. Ch. (N. Y.), 12, “that it is a wholesome juris-' diction, to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court.” It is said, however, in Jerome v. Ross, that the courts in England were for a long time extremely strict in the administration of this remedy, and the first instance of relaxation was in a case where an injunction was granted upon a*24 forcible entry against the commissioners of a turnpike, for digging gravel on land of the plaintiff. “But this seems,” says the opinion, “to have been grounded on the equity of quieting possession merely” (citing Hughes v. Merton College, 1 Ves., 188). “The rigor of the ancient rule,” it is said, “was at length further relaxed, upon the avowed principle of enjoining in matters of trespass, where irreparable injury is the consequence; and upon the authority of this case, Lord Eldon granted an injunction to restrain a trespasser from digging coal upon the premises of another. Mitchell v. Dors, 6 Ves., 147.” The requirement continued quite strict as to the nature of the injury; that is to say, as to whether it could be adequately relieved at law. Of course, there can be no question of one’s title to the remedy, where his fences are being torn down, if he is really in actual possession, and it should be stated that, in Tennessee, since the passage of the act of 1877 (Laws 1877, chapter 97) which gave to the chancery court concurrent jurisdiction with the circuit court in all cases except those involving unliquidated damages for injury to persons, property, and character, there should be no difficulty at all in exercising the jurisdiction.
Yas the complainant in actual posesssion of the land? It appears that the South Memphis Land Company has owned, for many years,, a tract of land comprising about three thousand, five hundred acres ad
Shortly after that the present bill was filed. The weight of the evidence is that there was fencing only on three sides of the land. This was broken down from time to time by defendants, and within a few weeks or months renewed by complainant. There was no fencing on the east end. On that end there was a drain or small branch. There was no structure erected by the complainant on the land until after he had enjoined the defendant. He then erected a house on it. However, in 1912, he dug a well upon the land.
Now, under these facts, did the complainant have such actual possession as would legally justify him in filing a bill to quiet possession? We think not. Although he raised several crops of vegetables upon the land, running from the spring until the fall, and although the leases described the land, yet he never had such actual, continuous, possession as would be extended to the boundaries of his lease. The planting and cultivation of a crop during a part of the year and leaving it unoccupied for the rest of the year would not amount to a continuous lawful pos
On tbe ground stated, we are of tbe opinion there was no error in tbe action of tbe court of civil appeals in affirming tbe chancellor’s decree dismissing tbe bill, and therefore tbe writ of certiorari is denied.