Sapp v. Roberts

| Neb. | Jul 15, 1885

Reese, J.

An injunction was issued by the district court for the purpose of restraining defendant from cutting down a line of osage hedge fence between the farms of plaintiff and defendant. Upon final trial the district court found in favor of plaintiff generally, upon the facts, and rendered a decree making the injunction perpetual. Defendant appeals to this court.

The first question presented for decision is, whether or not the plaintiff would be entitled to an injunction in the-absence of proof of the. insolvency of defendant, were it conceded that plaintiff was the owner of the hedge and that defendant was destroying it, there being a remedy, for-the damages.

We consider the rule well established as stated in Tigard v. Moffitt, 13 Neb., 565" court="Neb." date_filed="1882-07-15" href="https://app.midpage.ai/document/tigard-v-moffitt-6643777?utm_source=webapp" opinion_id="6643777">13 Neb., 565, that a court of equity will not interfere to prevent a mere trespass unless in cases where the plaintiff cannot obtain adequate relief at law. This, rule being conceded, it remains to enquire whether or not an adequate remedy at law does exist for an injury of the kind spoken of.

Without entering into a discussion of the authorities at length, we will dispose of this question by saying that it now appears to be well settled that where the trees or-shrubbery standing and growing on real estate are either fruit or ornamental trees, or shrubbery, injunction may be-' resorted to for the purpose of restraining their destruction,. As said in High on Injunctions, second edition, § 724;-Where “the trespass consists in the cutting of timber upon complainant’s lands, going to the destruction of that wh:ch is essential to the value of the estate, and to the destruction of the estate itself in the character in which it has been enjoyed, a fitting case is presented for relief by injunction.”' See also Fulton v. Harman, 44 Md., 251" court="Md." date_filed="1876-03-07" href="https://app.midpage.ai/document/fulton-v-harman-7894332?utm_source=webapp" opinion_id="7894332">44 Md., 251.

A distinction seems to be clearly marked between what is known as waste by the destruction of timber which is valuable only as it is prepared for sale or use as lumber, wood, etc., and what is known as equitable waste or-the destruction of such growth as was valuable only when standing and growing upon the land, such as ornamental trees and shrubbery, hedges, screensj young timber, and the like. 3d Wait’s Actions and Defenses, 697, and cases, there cited. An osage hedge fence is without value except as it is standing and answering the use for which it was intended. Its destruction would be of manifest injury to the inheritance. 2d. Story’s Eq. Jur., § 915. The destruction of such property as a prudent man would not destroy in the management of his own affairs. Turner v. Wright, 2 De G., F. and J., 234. It is clear that in cases •of this kind there is no adequate remedy at law. All persons are entitled to protection in the use, integrity, and value of their property, and where courts of.law cannot give such protection by reason of the inability of plaintiff to prove his damages, equity will interfere. 3 Wait’s Act. and Def., 700 and 701, and cases cited.

. Another, and what must have been a far more difficult question for the trial court, is the question of fact involved in this case, both as to the ownership of, or rather the right of dominion over, the property and as to whether or not there was any actual injury to the hedge, it being claimed by defendant that the cutting was necessary for the development of the hedge as a fence. Upon these question's there was a marked and sharp conflict of testimony. But these questions of fact were decided by the trial court, and with that, decision supported as it is by quite an amount of testimony which is unimpeached, save, by the contradicting testimony of defendant and his witnesses, we must be content.

The decree of the district court is therefore affirmed.

Judgment affirmed.

The other judges concur.