92 Mo. App. 510 | Mo. Ct. App. | 1902
This is a suit in equity to enjoin tEe cutting of timber upon certain described land in Butler county, Missouri.
The petition, in brief, charges that plaintiff is the owner and in possession of the land, which is chiefly valuable for the timber growing thereon; that defendant wrongfully entered on the land, cut down trees of the value of over $300, persists and threatens to continue cutting the timber which covers said land, and that defendant was engaged (at the time the suit was brought) in continuous trespassing on said land by such acts, and that he is appropriating to his own use the timber so cut. It is further charged that defendant is insolvent; that the-
The defenses in the answer include an assertion of lawful possession of the land (under a written license to remove the timber) and a denial of the facts in plaintiff’s petition.
An injunction pending the suit was obtained; and the cause was tried in due course before Judge Eoet.
The plaintiff showed title to the land by a series of conveyances from the State of Missouri, and the acts of the defendant complained of were practically admitted. They were proved beyond doubt. The trial court found for the plaintiff and made the injunction perpetual.
Defendant after the usual steps for review, took this appeal.
1. The first point of error assigned is that injunction will not lie to prohibit the cutting of forest timber, and that such injury is not irreparable. Along with this contention another is made to the effect that the plaintiff has an adequate remedy at law for any damage of which he may complain.
This contention involves the only question of substance involved in this appeal.
The law of to-day does not require that a person in plaintiff’s situation shall submit to the stripping of his timber-land of its forest trees, and then attempt to make his loss good by action for damages. The nature of the property involved and the inconvenience of suing for continuous trespasses, as charged in this case, constitute a basis for equitable relief, long recognized in this State under the statute governing the use of the writ of injunction. R. S. 1899, sec. 3649; McPike v. West, 71 Mo. 199; Turner v. Stewart, 78 Mo. 480; Eckelkamp v. Schrader, 45 Mo. 505; Heman v. Wade, 74 Mo. App. 339.
Our Missouri statute cited certainly was not intended to
Applying tbe principles declared in tbe foregoing authorities, it is immaterial whether tbe defendant was or was not insolvent.
2. This being a suit in equity, it is wholly unimportant whether the declarations of law which were given at tbe trial on tbe circuit are correct or not. No instructions are needed in sucb a suit. They constitute mere expressions of tbe court’s view in a suit in equity. As tbe review on appeal includes both tbe law and tbe facts, this court does not regard it as necessary to review any such declarations. They are superfluous and only serve to illustrate tbe theory which tbe trial court may have entertained of tbe subject in band. If tbe conclusion reached is correct, we need not scrutinize tbe reasons by which the result was reached in tbe circuit court. Bissell v. Warde, 129 Mo. 439.
3. It is not necessary to pass on tbe exceptions and assignments of error thereon challenging rulings on testimony admitted at tbe trial, where all tbe testimony is before the appellate court in a suit in equity. It is settled law in Missouri that, on appeal, in a case of this sort tbe review will include all tbe competent and relevant testimony and discard all that is irrelevant or incompetent, wall glean tbe wheat and reject tbe chaff, if any there be, in the record. Rice v. Shipley, 159 Mo. 405; Lodge v. Schworm, 80 Mo. App. 64.
We find from tbe evidence that tbe defendant bad neither title nor color of title, nor any foundation of right to tbe timber in question. Ilis acts complained of and threatened were 'trespasses. The trial court was entirely right in making tbe injunction perpetual. Its judgment is affirmed.
