54 F. 1005 | U.S. Circuit Court for the District of West Virginia | 1892
This is a motion for an injunction against the defendants restraining them from cutting and removing timber from the lands in the bill mentioned. The plaintiff alleges that he is the owner of a tract of land containing 100,000 acres, situated principally in Webster county, W. Va., known as the “Mc-Cleary Tract.” He claims to be the sole and exclusive owner of the land, that he is in actual possession of part thereof, and that he is entitled to the possession of all. Copies of the deeds and title papers under which he claims, duly certified as such, are filed as exhibits, and made nart of the record of this case. It is charged in the bill that the defendant “the West Virginia and Pittsburgh Bail-road Company, its agents and employes, are committing great waste and doing irreparable injury to said land by cutting and removing valuable timber therefrom, without authority or right so to do.” The plaintiff represents that certain other of the defendants “the Caperton heirs,” who then claimed to be the owners of part of said land, instituted a proceeding in equity against the plaintiff and others, which involved the title to the land, and that such suit is now pending on appeal in the supreme court of the United States, and that defendants have unlawfully combined together and entered upon said land, and are removing the timber, which is alleged to be the substance and value of the land, while the appeal is pending and undecided. Plaintiff charges that if the timber is removed the land will be practically valueless, and that he will suffer irreparable injury, for which he has no adequate remedy at law.
The defendant “the West Virginia and Pittsburgh Bailroad Company” answers the bill, and claims to be the owner of the “Caper-ton lands;” to have a “good and valid title to the whole thereof, superior to all others.” A copy of the record of said case now pending in the supreme court of the United States, entitled “Benjamin Bich, Walter Wood, Bichard Wood, et al., Appellants, vs. Tamlin Braxton et al., Appellees. Appeal from the circuit court of the United States for the district of West Virginia,” is filed with the answer, and made a part of this case as an exhibit. It appears that1 on the 8th day of August, 1881, Tamlin Braxton and others, the heirs at law of Allen T. Caperton, deceased, commenced a suit in the circuit court of Webster county, W. Va., against the plaintiff and others, claiming title in their bill to five parcels of land, as follows: A tract, 41,171⅜ acres, part of a tract of 158,-
The jurisdiction of courts of equity by way of injunction to restrain waste, to prevent the cutting of timber, and the mining of minerals, is one of comparatively recent origin, but it is now -fully recognized and well established in this country as well as in England. A leading case, in which the question of equity jurisdiction in such controversies was fully considered and previous authorities discussed, is that of Jerome v. Ross, 7 Johns. Ch. 315. This is the last decree rendered by that illustrious chancellor, whose able, clear, and erudite opinions, not only charm, but instruct and convince us, — Kent,—and it is replete with the wisdom of the English and American decisions on that question. See, also, Anderson v. Harney, 10 Grat. 386; McMillan v. Ferrell, 7 W. Va. 223; Moore v. Ferrell, 1 Ga. 7; Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. Rep. 565.
If the nature of the injury complained of goes to the substance of the estate, thereby producing irreparable mischief, equity will interfere in limine, and not require the party to resort to an action at law, and this independent of the question of the insolvency of the defendant. The chief value of the land in the bill mentioned is charged to be in its timber, and this the defendants, it is. conceded, have made extensive arrangements to remove, having expended many thousands of dollars for that purpose. This removal goes to the very substance of the inheritance, to the destruction of that which is the main element of value to it. The fact that the value of timber can be estimated, that it can be determined by the thousand feet, or by the car load, does not deprive a court of equity of the right to interfere by way of injunction, in cases where it is being cut and removed or destroyed, and where the ownership is in controversy. The products of mines and forests have a value that can generally be fixed, yet it was in prevention of trespasses to property of that character that the jurisdiction in question had its origin, and is now most frequently exercised. While it is true that, when this jurisdiction for equity was first claimed, “Lord Thurlow hesitated” and “Lord Eldon doubted,” it is now well determined — the decisions coming from courts of such character as to command our respect and of such grade as to compel our approval — that the jurisdiction not only exists, but that it is absolutely essential for the preservation of right and the suppression of wrong.
It is for this court to consider the facts as presented on the hearing of this motion; and, as they have arisen since the appeal was granted, the supreme court, as to them, would not have jurisdiction by virtue of the appeal. This suit ⅛ simply to restrain the commission of waste by the defendants pending the appeal, and the preventive writ of injunction is asked for to preserve the property from destruction until a decision of the questions involved is made by the supreme court of the United States. That decision will settle the title to the property in controversy, and determine the rights of all the parties hereto therein. The writ will issue; the injunction will he granted, enjoining and restraining the defendants the "West
■While the court will thus protect the interest of the plaintiff pending the appeal, it cannot be indifferent to the claims of the defendants to the property in controversy, and it is evident it will work great hardship to the defendants to require them to cease the work now partially completed, and to stop the use of the mills and booms now constructed, and now being utilized in removing the timber. If the court can protect the rights of all the parties to this controversy, and at the same time not take such action as will require the dismissal from employment of the large number of men now worldng for defendants on the land in dispute, and the nonuse and injury to the valuable and expensive machinery connected with the improvements, it should do so. In my opinion, this can be done, and I may add that I think it is peculiarly a case where it should be done. The injunction against the defendants, when awarded, will remain in force and effect, unless they, or either of them, or some one for them, shall execute a bond with good and approved security, conditioned, as required by law and the rules of this court, in a penalty yet to be determined by the court. When such bond shall have been executed, approved by the court, and filed with the clerk, the operation and effect of the injunction will be suspended, and the defendants be authorized and permitted to cut and remove the timber from the land in controversy, but they will be required to report at stated times to the court the quantity and character of the timber so cut and removed, in order that an accurate account of the same may be kept, and the interests of all parties to the pending controversy protected, so that such decree as may be proper can be entered after the appeal now pending shall have been determined.