92 P. 811 | Or. | 1907
Lead Opinion
delivered the opinion.
1. By the decree from which this appeal is taken, the defendant was enjoined and restrained from cutting or removing- any timber or wood, whether cut or otherwise, from section 31, regardless of its size, quality or dimensions, except' the saw
2. It is not necessary to consider what defendant’s situation would have been if plaintiff had appealed from that portion oE the decree refusing to enjoin it from taking or cutting such timber, and given a stay bond. The record, however, does not disclose that the plaintiff did so appeal, although it was said at the argument that, after defendant’s appeal, plaintiff took a
3. We pass then to a consideration of the questions arising on defendant’s appeal. It is insisted at the outset that the court is without jurisdiction, because this is a proceeding, under Section 348, B. & C. Comp., to recover treble damages for the wrongful and unlawful cutting of timber on plaintiff’s land. The reference in the complaint to Section 348 and the allegations attempting to state a cause of action under such section may be treated as surplusage, as was done by the trial court, and enough remains to constitute a cause of suit for injunction to restrain a trespass or- the commission of waste.
4. It is alleged in the complaint that plaintiff is the owner of certain described lands, and that there is growing and standing thereon a large quantity of trees and timber suitable for cord wood of great value to plaintiff; that between certain dates, defendant wrongfully and unlawfully entered upon such lands and cut and removed therefrom 2,000 cords of wood; that it has a large force of men and teams engaged in cutting and hauling timber and wood from such premises, and threatens to and will, unless restrained, remove the wood and timber therefrom, -to the irreparable injury of plaintiff’s estate, and to his great damage. These are facts sufficient for injunctive relief, for the rule is firmly established in this state that a court of equity will interfere to restrain a trespass or stay waste, threatened or being committed, when the acts complained of go to the
“The general rule that a court of equity will refuse to take jurisdiction and award even a temporary injunction, in cases of a mere trespass, is conceded; but there is an established exception in cases of mines, timber and the like, in which an injunction will be granted to restrain the commission of acts by which the substance of an estate is injured, destroyed or carried away. In such ease, the injury being irreparable or difficult of ascertainment in damages, the remedy at law is inadequate.”
Mendenhall v. Harrisburg Water Co. 27 Or. 38 (39 Pac. 399), was a suit to enjoin the defendant from taking possession of land belonging to plaintiff and cutting timber and enlarging a ditch thereon, and the court sustained the suit and granted the injunction. In that case Mr. Justice Moore, after quoting from Smith v. Gardner, 12 Or. 221 (6 Pac. 771: 53 Am. Rep. 342), said:
“In the ease at bar the evidence shows that the defendant threatened to widen the ditch beyond the limits of its right of' way, and throw the material taken therefrom upon plaintiff’s land; to construct and maintain a dam, the backwater from which would destroy the ford used by the plaintiff and her husband; and to cut and destroy the timber growing along the banks of the ditch outside of the right of way. The injury complained of is more than a mere trespass; it goes to the destruction of plaintiff’s estate.”
Sheridan v. McMullen, 12 Or. 150 (6 Pac. 497), was a suit, by a landlord against his tenant to enjoin him from cutting timber on leased premises. The jurisdiction of a court of
“The remedy by injunction to stay waste, threatened or being committed, has been so often asserted, and is now so fully established, that the jurisdiction is seldom questioned. It has almost entirely superseded the common-law action of waste, and in a great measure taken the place of the action on the case for damages, ordinarily resorted to whenever any remedy is sought at law, because of their inadequacy in many cases, and the remedy by injunction is so much more expeditious and complete.”
In support of this position, the learned justice cites Fleming v. Collins, 2 Del. Ch. 230, in which it was held that the cutting of timber is an injury of irreparable nature and remediable in equity, by whosoever committed, and that equity, having jurisdiction to restrain waste, will decree an account and satisfaction for the waste committed. He also refers to and quotes approvingly, Judge Story's summary of this equitable jurisdiction, in which he says:
“The inadequacy of the remedy at common law, as well to prevent waste as to give redress for waste already committed, is unquestionable, and there is no wonder that the resort to the court of law has in a great measure fallen into disuse. * * The remedy by a bil-1 in equity is so much more easy, expeditious and complete, that it is almost invariably resorted to. By such a bill not only may future waste be prevented, but, as we have already seen, an account may be decreed and a compensation given for past waste: 2 Story, Equitable Juris. § 917.
In Livingston v. Livingston, 6 Johns. Ch. (N. Y.) 497 (10 Am. Dec. 353), Chancellor Kent says: “This protection (by injunction) is now granted in ease of timber, coals, lead ore, quarries, etc.” Elliott v. Bloyd, 40 Or. 326 (67 Pac. 202), was a suit to enjoin defendant from taking and removing timber from land belonging to plaintiff not included in' a contract between the parties, by which plaintiff sold to defendant certain described timber on such land. In that case, also, the jurisdiction of a court of equity was questioned; but it was held that under the settled rules of equitable jurisdiction the court
5. It is also contended that the court erred in permitting plaintiff to file an amended reply, after portions of the original reply had been stricken out on motion; but this was a matter resting within the sound discretion of the trial court, and its judgment thereon will not be disturbed on appeal, unless it appears there was an abuse of such discretion. Nor does the fact that plaintiff’s application to file such amended pleading was not supported by an affidavit showing why he should be permitted to do so. The court allowed his application, and before its ruling can be disturbed on appeal, it must affirmatively appear that it erroneously exercised its discretion. Where a court refuses to permit an amended pleading to be filed, its judgment likewise will not be disturbed, unless it appears from a supporting affidavit, or otherwise, that it was an abuse of discretion to deny such application: Garrison v. Goodale, 23 Or. 307 (31 Pac. 709).
6. It is also insisted that the reply as filed constituted a departure from the cause of suit set up in the complaint. The defendant justified its right to cut or remove the timber or wood in controversy under and by virtue of two certain contracts, which it claims to have with plaintiff, but which are not set out in the answer, except in legal effect. To meet this defense, plaintiff by his reply pleads the terms of these contracts for the purpose of showing that the timber or wood in question did not come within the provisions thereof. The reply, therefore, is not a departure from the complaint or a new assignment of a cause of suit. It would probably have been better pleading if plaintiff had referred to, and set out, these contracts in his complaint, and then averred that the wood and timber, which he says defendant is wrongfully and unlawfully taking and threatening to take from his land, did not come within the terms of the contract; but it was not absolutely essential for
7. It is claimed that defendant’s motion to dismiss the suit, made at the close of plaintiffs testimony, should have been sustained, because the evidence shows that defendant was not. in fact, a trespasser, but had a right, under its contracts with plaintiff, to enter upon the property in controversy for the purpose of cutting and removing certain timber, and that it is liable, if at all, for waste in cutting timber to which it was not entitled under such contracts, and therefore the plaintiffs remedy should have been by suit to. restrain waste, and not to enjoin a trespass. Technically there is a difference between “waste” and “trespass.” “Waste” is some unauthorized act which goes to the injury or destruction of an estate committed by one in the rightful possession thereof, while “trespass” is the act of a mere intruder. But, as we have seen, there is no substantial distinction, so far as the remedy is concerned. The law gives for trespass, by which the substance of an estate is injured or destroyed, and which cannot be adequately compensated in damages, the remedies for waste (30 Am. & Eng. Enc. Law (2 ed.), 258), and therefore, while in a technical sense the appropriate remedy for the plaintiff, under the facts disclosed by the testimony, would have been a suit to restrain waste, rather than a suit to enjoin a trespass, the relief sought is substantially the same, and the technical form of the pleading could have worked no injury to the defendant'.
8. This brings us to the merits. So far as the controversy concerning the timber on section 31 is concerned, the result depends upon the construction of the word “saw timber,” as used in the contract between plaintiff and Palmer of June 28, 1902. The court below found that prior to Ju-ly 1, 1905, defendant had taken from such land all the timber fit for lumber, except that upon a strip" about 11 rods wide extending across the east end of the land, and in this view we concur, after a careful reading of the testimony. The evidence shows that the greater part of the land was “logged off” during the winter of
9. Two questions arise in the consideration of the controversy over the timber on the remainder of the land described in the complaint: First,.whether the judgment in favor of defendant, in the action brought by it against plaintiff in the circuit court for Multnomah County, to recover the valúe of cord wood cut by him on the land, is a bar or an estoppel to this suit, and, if not, whether defendant is bound by the terms of the contract of December 34, 1903, between plaintiff and Morris, modifying the contract of July 31, 1903, as to limit the rights of the purchaser to timber 13 inches and upwards in diameter. A reference to the pleadings and findings in the former action is necessary to an intelligent understanding of the question involved in the plea of former adjudication. The complaint in such action, after averring the incorporation of the Boring Junction Lumber Company, alleges that on July 31, 1903, Palmer 'purchased of Roots all the timber on the land in question, and paid him therefor, and subsequently sold and transferred all his rights under such contract to the company, and it is, and during all times mentioned in the complaint has been, the owner of such timber; that on or about the 1st day of May. 1904, Roots, without its permission, went upon the land, cut and converted to his own use, about 40 cords of wood from timber then belonging to it, of the reasonable value of 50 cents a cord, and prayed judgment for that amount. The answer is a general denial of the allegations of the complaint, and the findings of fact are substantially a copy of such allegations, except as to the amount of wood cut and removed ‘by Roots.
The law is well settled that, when a fact has been once litigated in a court of competent jurisdiction, the judgment rendered thereon is, as, a plea, a bar, or, as evidence, .conclusive
There is a difference between the effect of a judgment as a bar or estoppel in another action between the same parties upon a different claim or demand, and in a second action upon the same claim or demand. In the latter case, the judgment, if upon the merits, is an absolute bar, and conclusive not only as to every matter that was actually litigated, but also to every
10. The other question is one of fact. The defendant claims that it is not bound by the contract between Morris and Roots, of December 24, 1902, and at the time it acquired its rights to the timber in controversy, it had no knowledge of such contract or the terms thereof. But this • position is not supported by the testimony. Some time prior to December 24, 1902, Palmer assigned and transferred to Morris his mill property and all his rights under the contracts with Roots of June 28 and July 21, 1902, and on the day named, Morris and Roots entered into a written agreement, in which it was stipulated that Morris would pay Roots $20 an acre in lieu of the compensation mentioned in the contract of June 28th for the timber he was authorized to cut on the land in section 31, and that Roots “shall have the right to cut all the timber under 12 inches fn diameter on land described in said contract of July 21, 1902, as well as the land described in the contract dated June 28, 1902,” and the right to “enter upon any of the land described in said two agreements and cut the timber thereon authorized by him to be cut,” as soon as Morris shall have cut and removed the timber to which he is entitled. Four days later, Morris re-transferred the mill property to Palmer, together with the right to cut timber from the lands described in the two contracts referred to, “the said timber to be cut as authorized by said two agreements and as permitted by that contract or agreement” entered into by him and Roots of date, December 24, 1902, and Palmer agreed to pay Morris $1 per thousand as stumpage. Subsequently Palmer sold one-half interest in his business and the contracts in question to Linton, who agreed in writing to assume one-half of the contract existing between Palmer and Morris, and thereafter Linton and Palmer sold and transferred the mill property and contracts to the defendant, and it likewise stipulated and agreed in writing to assume and
Rehearing
On Motion for Rehearing.
delivered the opinion.
11. It is insisted that Morris is a necessary and proper part}' to this suit. But he is in no way interested in the subject-matter of the litigation, nor are any of his rights involved. His connection with the matter is only because appellant’s interest in the contracts in controversy were secured through him, and its rights are to be determined by the original contracts as modified by himself and Roots. Such modified contracts are the muniments of appellant’s title, and Morris is no more a necessary party to the litigation than a grantor in one of the deeds in the chain of plaintiff’s title would be in an action to recover real property.
12. It is also contended that plaintiff ought not to be permitted to maintain this suit, because in March, 1905, he commenced an action at law against the defendant for a violation of the terms of one or both of the contracts in question, and in April of the same year brought a suit in equity to reform one of them, and that such litigation was pending and undetermined at the. time this'suit was commenced; but it arose out of matters occurring prior to the cause of suit set out in the present complaint, and has no connection therewith, other than it may have arisen out of the same contract. It is perhaps true that a plaintiff cannot proceed at the same time in equity and at law upon the same claim or demand, and that, when he
Other questions are discussed in the petition, but they are substantially covered by the opinion heretofore filed. The record shows, we think, that defendant has taken all the timber from section 31 to which it is entitled, except the saw timber from the strip 11 rods wide, and, as the court below decided, it is entitled to take, at any time during the life of the contract, all the timber 12 inches and upwards in diameter from section 6, whether suitable for manufacturing into lumber or not. The modification of the contracts by Morris and Roots, to the'effect that the latter should have the right to cut and remove all timber under 12 inches in diameter, was manifestly intended to restrict, rather than to enlarge, the rights of the vendee under such contracts, and cannot by any fair construction be held to entitle Morris or his" assignee to any saw timber from section 31.
Petition denied. Affirmed : Rehearing Denied.
