70 W. Va. 68 | W. Va. | 1911
This appeal from an order dissolving an injunction awarded to prevent the cutting of timber on a tract of land, the title to which is in dispute, pending an action, of ejectment to determine the title, would necessarily and inevitably fail under a rule or principle often declared by this Court, if we should adhere to it. Unless the trespass itself constitutes irreparable injury none is shown, for there is no allegation of insolvency of the trespasser nor of any other circumstance, precluding recovery of such compensation in money as the law gives, for the injury done and threatened, by an action.
In 1874, in the case of McMillan v. Ferrell, 7 W. Va. 223, this Court prescribed, as being essential and indispensable to a bill to prevent the cutting of timber, averments of good title in the plaintiff, trespass by the defendant and the insolvency of the latter or some other circumstance, rendering an action for damages futile or unavailing, and that doctrine has been uniformly maintained ever since. Curtin v. Stout, 57 W. Va. 271; Marcum v. Marcum, 57 W. Va. 285; Stephenson v. Burdett, 56 W. Va. 110; Burns v. Mearns, 47 W. Va. 744; Cresap v. Kemble, 26 W. Va. 603; Schoonover v. Bright, 24 W. Va. 698.
However, this rule seems not to have commanded uniform approval by the public, nor by the members of the legal profession, and, in later years, under conditions greatly enhancing the value of 'timber and altering, to a considerable extent, the method of handling R, the dissatisfaction has grown in extent and intensified in degree. Out of the great disfavor into which the rule has thus fallen, an insistent demand for its abolition has brought forth earnest, able and laborious inquiry as to the soundness of the reasoning upon which it was established,
Under these circumstances, we feel it our duty to.re-examine the proposition and thoroughly test its soundness by the application of legal and equitable principles. The chief restraint or limitation upon the overruling of decisions is the inexpediency and injustice of disturbing property rights. Hence, it has been said that a line of decisions enunciating a principle which has become a rule of property, or under which property rights have vested by reason of its observance and adoption in contracts, will not be overruled. Here, there is no such limitation. To abolish the rule or principle under consideration neither destroys nor impairs any property right or incident. On the contrary, the abolition thereof will conserve and protect such rights and incidents, 'for, no man can be said to have a property right in that which amounts to a trespass against his neighbor or a stranger. The effect will be to give the admitted and acknowledged property owner a more' complete remedy for the vindication of his property rights. We regard the rule as one pertaining to remedy only as regards the trespasser who is the sole beneficiary thereof. Hence, if the application of the test above mentioned shall disclose its unsoundness we shall feel entirely free to abrogate it. ' Having created or ordained it, this Court may consistently discard it, without injury to any person and to the great relief of property owners.
■ Supposed inadequacy of the -legal remedy for the cutting of timber, regarded as a mere trespass upon land, constitutes the basis of the rule. If the legal remedy is not adequate, the whole doctrine necessarily fails. Whether it is, must be determined by reference to the general policy of the law as disclosed by its application in analagous and related cases. In other words, we must see to what -extent the remedies afforded by courts of law and equity protect and vindicate the right of an owner of property to keep it in such condition as he desires. If we find the general object to be the maintenance of this right, respecting all other kinds of property, we must necessarily say it ought to extend to the right of an owner of timber to allow it to stand upon his land in its natural state as long as he desires it to
Upon the principles and considerations here stated, we are of the opinion that the adoption of this rule was a deviation from fundamental principles of our jurisprudence. It is no doubt attributable to a lack of appreciation of tire true character of timber, due to its former abundance and comparative worthlessness. In early days, it was regarded as an encumbrance and burden upon lands. Having nothing but forests, the chief object or purpose of land owners everywhere was to get rid of the forests and prepare their lands for agriculture. There was an abundance of timber and no market for it. The soil was untillable because of the timber. Hence, it was a common practice for owners to cut down the finest of timber, faultless oak, poplar, pine, walnut and hickory, and burn it upon the premises in log heaps, upon the theory of a disposition of an encumbrance and obstacle to the growth and development of agriculture as a pursuit. Anybody who desired to cut a tree on his neighbor’s land, in the pursuit of wild animals or the search for' deposits of honey, had a tacit permission to do so. Forest fires were not regarded as evils unless they happened to destroy fences, buildings or other improvements or agricultural implements or products. Timber was not regarded as anything more than an ordinary commercial article and almost worthless because of its abundance. The prevalence of this estimate of its character was naturally calculated subtlely to influence the minds of the judiciary, for the judges were men then as they now are and always have been, mingling with the populace and insensibly and unconsciously absorbing, to a greater or less extent the prevailing sentiment of the people. The error, thus born, has been revealed by the great chahge of
Violative of principle,- as we think, the rule is also contrary to the great weight of authority. In the general ■ struggle for relief from it, courts have, in some instances, based distinctions upon the relative values of the timber and the land, saying- the cutting of the timber, constituting the chief value of the land, will be enjoined, but we think a clear case of trespass by the cutting of timber should always be enjoined. In one sense, a small quantity of timber on land is more indispensable to its enjoyment than a large quantity. As to the weight of authority, see 5 Pom. Eq. Jur., sec. 495; 22 Cye. 832; High Inj., secs. 671 to 679.
Our conclusion, treating growing timber as part of the real estate and placing it on the basis of minerals, applies the law enunciated in Freer v. Davis, 52 W. Va. 1, allowing an injunction to prevent irreparable injury, pending the determination of a dispute as to title by an action at law. This suit for an injunction was ancillary to an action of ejectment pending between the parties for that purpose.
On the motion, to dissolve the injunction, a verdict in favor of the defendants in the action of ejectment was read, and it is here invoked in justification of the decree appealed from. In our opinion, it has not such force and effect. The order recording it is interlocutory. Though the verdict constitutes a basis for judgment, it is not a judgment. Besides, it may be set aside and thus wholly fail. It is said a'motion to set this verdict aside was pending, but that, as it was not incorporated in this record, it cannot be considered. Deeming nothing short of a judgment conclusive of the question of title, we refrain from discussion of the question of practice. We know, as matter of law, the verdict alone is not a final adjudication and are not at liberty to forecast the final action of the trial court. Presumptively the verdict is right, but, to be effective as a mater of adjudication, it must be carried into judgment.
Por the reasons here stated, the decree complained- of will
Reversed and Remanded.
This note does not evince any dissatisfaction with the opinion prepared by Judge PofeenbaegeR. I write it only to give a short personal reason why I agree to overrule many decisions denying equity jurisdiction by injunction against cutting timber, in addition to those given by Judge PoeeenbaRGER. I am averse to overrule decisions; but the rule of those decisions is so bad that it ought not to stand. I expressed my dissatisfaction with the rule denying injunction on page 690 of 60 W. Va. in case of Whitehouse v. Jones. 1 write this note to say that a strong rule or argument to justify a court in overruling . an erroneous decision is this, that when the continued operation of the erroneous decision will do more harm than would its overruling, it should be overruled. I referred to this rule in any opinion in Weston v. Ralston, 48 W. Va., page 180. I find the case of Calhoun Co. v. The Ajax Co., 27 Colo. 1, laying down that position. It holds: “A. wrong decision should, not be followed unless it has been a rule of action so long, and relied upon to such an extent, that greater injustice and injury will result from a reversal, though wrong, than to observe and follow it.” The erroneous decisions overruled in this case have been running on doing mischief all the time. Overruling them will avoid that mischief and do no harm, especially as it only relates to remedy.