70 Ga. 357 | Ga. | 1883
This bill in equity was filed to stay waste by writ of in-j unction. The complainant alleges title to, and possession of, a tract o'f land in DeKalb county, used by him as a farm, and upon which he was preparing to erect a dwelling-house as a residence; that some seventeen acres of said land was wooded, and was the only woodland on the tract of ninety-two acres; that defendant, without title or claim of right, was cutting down the timber on those seventeen acres; that he had destroyed many trees, and was still engaged in cutting down and destroying others; and that, among those thus destroyed, were trees where he had cleared up the undergrowth and cleaned up the spot for the purpose of erecting his residence thereon ; and that thus his entire place was being ruined and wasted by a naked trespasser, by the destruction of all the timber thereon essential for the farming purposes of the tract, and the killing and destroying the shade trees which the complainant had thus prepared and reserved for the surroundings of the contemplated residence; and thus that the damage to the farm and the part of the land reserved for said residence, was incapable of being computed in money, and irreparable.
To this bill, after several terms of the court had elapsed, a general demurrer, for want of equity therein, was filed. Counsel for complainant agreed that this demurrer should be considered as filed at the first term. After this agreement, an amendment was made to the bill, and to the bill, as amended, no demurrer was filed.
The court dismissed the bill, and complainant excepted.
Equity causes are to be tried in the county of the residence of a defendant against whom substantial relief is. prayed. Constitution, Art. 6, sec. 16, par. 3, Code, §5169. Cases respecting titles to land must be tried where the-land lies. Code, §5168, par. 2 of the same title and section* The two paragraphs must be construed so that both can stand and neither be annulled.
If, therefore, the relief prayed for in the equity cause, be not to recover land, and in that sense affect title, the court of the residence of the defendant would have the jurisdiction; but if its purpose was, and the relief prayed for is, to fix title, then the question of jurisdiction would be more difficult of solution, and the effort to reconcile the-two paragraphs of the constitution so as to vitalize both, would not be so easy. This cause is not to try title, but to stay waste. Title may be drawn into the trial, but it is. an incident, not the gravamen of the bill.
But we think that this court has settled the principle that covers this cause. It has been ruled squarely that an action of trespass gxiare clausum fregit-, must be brought in the county of the defendant’s residence.
Paragraph 6 of the same section of the same article, which is, in effect, the same as in prior constitutions, requires all other cases to be tried where defendant resides. Other cases than what cases ? Those classes of cases previously provided for, is the clear answer. One class of these is cases respecting land titles, in paragraph 2. Yet, trespass guare clausum fregU, it was ruled in 34 Ga., 509, and 35 Ga., 144, should be brought in the county where the-defendant resided, though the land lay in a different county.
Moreover, we think that the agreement must be construed in the light of the demurrer. It is an agreement to try that demurrer for want of equity in general, and not a demurrer which could not, at that late stage, have been filed at all. At all events, this is all which was agreed to; and we have seen that it should have specified this ground, if that was to be relied on. In addition to all this, the bill tried was not demurred to at all. That bill is the bill as amended. After the amendment, there was no demurrer at all.
This jurisdiction was originally confined to cases founded in privity of title, but was afterwards enlarged, so as to embrace cases of adverse claims and rights not founded in privity. Story’s Eq. Jur., 918; Eden on Inj., ch. 9, p. 191 to 196; ch. 10, p. 206 to 214. To give jurisdiction'to equity, the trespass or waste must be destructive to the estate, or, in other words, so ruinous as not to be capable of an accurate measurement in money, or so destructive to something of such vital necessity to the enjoyment of .one’s estate as that m mey cannot well give compensation therefor; or, as laid down in the Code of Georgia, where “ the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ (of injunction) necessary and proper, among which shall be the avoidance of circuity and multiplicity of actions.”
The facts alleged here, we think, make a case within these rules of law defining the limits within which equity will interfere by injunction. If the shade trees, necessarily the growth of years, in some instances of centuries, standing in a man’s yard where he has built his residence, or is about to build it, are being cut down and destroyed, nothing but time, and time beyond a generation, can replace them. It is impossible to estimate the value to the homestead in money. It is irreparable in damages. If the only timber on a ninety acre farm is being cut down, and all forest vegetation laid waste, so that nothing will be left to shade man or beast in toil or in rest, in the field or the pasture, — nothing to repair fencing or mend the fire, it would be very difficult to ascertain the damage in money. In either case, both of which appear in this bill, how can damages be estimated at all ? Is not the waste destructive to the freehold as a farm, for farming purposes, and almost equally so to the freehold chosen as the spot for a residence, and cleared of undergrowth for
The case is without the principle ruled in 62 Ga., 171, and others cited by defendant. See 1 High on Inj., 724, 726, 727, and cases cited there. 11 Am. Dec., pp. 500, 501; 14 Md., 152.
Judgment reversed.