Burnley v. Cook

• Decision Date: 01 January 1855
• Parties: ALBERT T. BURNLEY AND ANOTHER v. WILLIAM M. COOK AND OTHERS.
• Court: Texas Supreme Court

13 Tex. 586

ALBERT T. BURNLEY AND ANOTHER

v.WILLIAM M. COOK AND OTHERS.

Supreme Court of Texas.

1855.

Appeal from Harris. Action by the appellants against the appellees to restrain the defendants from laying off and building a town, &c., at Powder Horn, on the land of the plaintiffs. The irreparable injury alleged was in this, that plaintiffs had been at great expense in one way and another in laying off, &c., a town at La Salle, which they alleged to be the best point on Matagorda Bay for a city; “that owing to the embarrassed circumstances of your petitioners, especially of the said Jones--to the fact also that unless he can obtain pecuniary aid upon the prospective value of the said town of La Salle, and by sale of property therein, he will be compelled to sacrifice his interests therein, (it was alleged that Jones's interest had been sold under execution, but that the purchaser, by valid contract, had given him a certain time to redeem,) the said acts of the defendants herein are of great and irreparable damage to your petitioners; that they believe that public confidence exists in the advantages of La Salle, and that large sales of property therein can be soon effected, and pecuniary aid obtained, which will enable your petitioners to proceed rapidly with the building of La Salle and obtain large profits therefrom; but that if persons desirous of making investments at the best point on Matagorda Bay continue to see the said Cook and those under him engaged in said acts at Powder Horn Bayou, (holding possession, building houses and wharves, and laying off lots, &c.,) and giving out and pretending that it will be made a rival town site also, your petitioners fear that it will be impossible to effect said sales or to procure investments, at least until their own pecuniary ruin is consummated,” &c. The petition alleged that the plaintiffs were the true owners of the land, including both town sites, but that William M. Cook had caused a 320 acre certificate to be located on the Powder Horn site in 1849, &c. The only special prayer was for the injunction; there was a prayer for general relief; the petition was not indorsed to try title. The answer of Cook denied the title of the plaintiffs, detailing the objections thereto, alleged that Powder Horn was the best site for a town, &c. The other defendants adopted Cook's answer by the attorneys.

The injunction, on account of the consanguinity of the judges of the 10th and 1st judicial districts, had been granted by the judge of the 7th district. There was a plea in abatement of the injunction on the ground that the judge of the 7th district had no authority to order the writ; there were exceptions to the petition because the purchaser of Dr. Jones's interest, who, the petitioner alleged, resided in Louisiana, was not a party; and there was a general demurrer. There was in the transcript no motion to dissolve and dismiss, but the entry of judgment recited, “This day came the parties by their attorneys, and the motion herein filed to dissolve the injunction herein granted and dismiss the bill, having been submitted,” &c., injunction dissolved and suit dismissed. The venue had been changed to Harris by consent of parties. It did not appear that plaintiffs asked the court to continue the suit for other relief.

Jones & Ballinger, for appellants.

I. A. & G. W. Paschal, for appellees.

WHEELER, J.

The proposition that an injunction will in no case be granted for the prevention of injuries to the plaintiff's freehold or the enjoyment of his rights of property, where the defendant is in possession under an adverse claim of title, as insisted by counsel for the appellee, does not seem to be universally admitted. On the contrary, where the defendant was in possession of land which he claimed by an adverse title, and a suit was pending to try the title at law, an injunction was granted to restrain him from cutting timber and committing other waste. (Shubrick v. Guerrard, 2 Desau., 616.)

It is true, that an injunction will not be granted to restrain a mere trespass where the injury is not irreparable, or destructive to the plaintiff's estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. It must be a strong and peculiar case of trespass going to the destruction of the inheritance, or where the injury is remediless, or not susceptible of pecuniary computation and compensation, to entitle a party to this preventive remedy. (7 Johns. Ch. R., 315.) The ancient doctrine of the court of chancery was not to interfere by injunction in cases of trespass, but to leave the party to his legal remedy. But the practice of the court is now more liberal, and in cases of trespass it excepts a strong case of destruction, or irreparable mischief. (Eden on Injunctions, 231, n. 1, 3d ed.; Bonaparte v. The C. & A. Railroad Co., 1 Baldwin, 231, 232.)

The practice, it is said, of issuing injunctions in cases of trespass, on the principle of irreparable mischief, has now become exremely common. (Hanson v. Gardiner, 7 Sumner's Vesey, 305, b, note c.) An injunction may be granted to stay waste pending an action at law, or a suit in equity to try the right. (Atty. Genl. v. Norwood, 1 Bland, 581; Id., 582; Id., 583.) But an injunction will not be granted to stay waste or nuisance, before a hearing on the merits, except in cases of urgent necessity, or where the subject matter of the...