61 Pa. Super. 334 | Pa. Super. Ct. | 1915
Opinion by
The court below granted a preliminary injunction to restrain the defendant from cutting and removing growing timber, and after a full hearing the injunction was dissolved, from which decree the plaintiff has taken this appeal.
The court found, as a fact, that the timber in controversy, with other timber, had been sold by the plaintiff to the defendant under an entire contract, and that a full and valuable consideration had been paid for the
To justify us in reversing the finding of a chancellor on a question of fact, as we have often said, clear and plain error must be pointed out. It is not sufficient that our conclusions would be different on the testimony brought up on the record. Straus v. Berger, supra. The expression, immediate delivery, in such a contract, is to be construed in the light of the circumstances, having due regard to the subject matter, its location, the season, the difficulty of removal and the like, and in the light of the facts as found by the court, the entry on the land was under a sufficient claim of right. The defendant cannot under such facts have the aid of equity to enable him to keep both the timber and its purchase-price. The granting of an injunction is always the exercise of power to be cautiously used, and it should clearly appear that irreparable injury is likely to follow, and that there is no adequate remedy at law.
A pending action of trespass, brought by the plaintiff, will afford him an ample opportunity to recover any
The decree is affirmed.