Folkner v. Whitehurst
| Citation | 229 S.W. 146,144 Tenn. 62 |
| Parties | FOLKNER v. WHITEHURST ET AL. |
| Decision Date | 03 February 1921 |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Hamilton County; W. B. Garvin Chancellor.
Bill by J. E. Folkner against C. F. Whitehurst and another. Decree overruling demurrer to bill, and defendants appeal. Affirmed.
The bill in this cause was filed for the purpose of enjoining and restraining the defendants Whitehurst and Hixon from permitting their stock to run at large upon the farms premises, and crops of the complainant in Hamilton county. Whitehurst is a resident of Pennsylvania, but owns a farm adjoining that of the complainant in Hamilton county. Whitehurst is also the owner of the trespassing stock. Hixon as superintendent, operates said farm for Whitehurst.
That, among other personal property owned by Whitehurst and on his farm, are a number of head of hogs, and these the defendants turn out to run at large, and knowingly and intentionally permit them to run at large, and in and upon the farm, premises, and property of the complainant and others, in violation of law and to complainant's injury and damage.
That defendants not only willfully turn out said stock, but knowingly and willfully permit them to run at large, and in and upon complainant's farm, fields, premises, and crops thereon, but they willfully disregard, violate, and set at naught said statute, and refuse to obey it. They know of the depredations of said stock upon the farm of complainant. They know of the damage and injuries done and being done to complainant, but they refuse to keep up said stock, and they persist in letting them run at large, and they refuse to obey said law; and they not only threaten, but they state their intention and purpose, to permit the continued running at large of said stock, and the continued injury and damage to complainant and others.
That the complainant sought to avoid the necessity of this suit by having the defendants to stop the violations of law, and to keep their stock from entering in and upon the property, but that they refuse, and they insist that they intend to continue their course of permitting the stock to run at large.
That money damages cannot and would not compensate complainant. Said stock not only have rooted up and are rooting up the land and crops, but are so injuring the lands as that new crops cannot this spring be planted, or, if planted, they will be so injured as that normal harvests, if any harvest at all, will not, and cannot, be realized from them; and such losses to complainant cannot be ascertained, declared, or allowed, or adequately compensated for, by any rule of law. Complainant's injuries and damages are irreparable, and will continue to be irreparable; and in addition to all this, even were the damages not irreparable, it would necessitate a multiplicity of suits to enforce the same; that complainant's only full, adequate, and complete remedy is an appeal to this court for an injunction to stop the further continuance of the wrongs.
That the General Assembly of 1919 passed an act, the same being chapter 651 of the Private Acts of that session, entitled:
'An act to fix, define and establish a lawful fence in counties of this state having a population of not less than 70,000 nor more than 90,000 inhabitants, according to the federal census of 1910 or any subsequent federal census, except within the corporate limits of sites of counties falling within the provisions of this act."
The body of the act provides, without more, that certain kinds of fence shall be a lawful fence. The only repealing clause is:
"That all laws and parts of laws in conflict with the provisions of this Act be, and the same are hereby repealed"
--and the last section provides:
"That this act take effect from and after March 1, 1920."
That this alleged act of 1919, if it ever became a law, did not, by its express terms, until March 1, 1920; that it never did, and does not, apply to Hamilton county, because (1) on March 1, 1920, by the federal census of 1920, said county had a population of more than 90,000 inhabitants, and (2) under and by virtue of chapter 695 of the Acts of 1919 (passed April 14, 1919) the county of James was abolished and dissolved, and its territory and inhabitants transferred to Hamilton county, and prior to and by said March 1, 1920, the said James county had been abolished and the organization of its said territory and inhabitants as part of Hamilton county had been fully and completely executed and effected; and Hamilton county had a population of more than 90,000 inhabitants even according to the federal census of 1910.
That even though said act of 1919 applies to Hamilton county, which complainant denies, it in no manner touches or affects, or disturbs or repeals, the stock law aforesaid, either expressly or by implication; the repealing clause in it repeals nothing; and there is no repeal by implication, because there is no antagonism, repugnancy, or inconsistency whatsoever between it and the said stock law; and even though it be said that it applies, or can apply, to Hamilton county, the two laws would stand, one prohibiting stock to run at large, and the other prescribing that certain fences are lawful fences, and that in every possible view of the case the defendant's acts aforesaid are unlawful.
That, in addition to the grounds of complaint aforesaid, and arising from, and growing out of, the conduct aforesaid of the defendants, complainant charges that he has the right to appeal to equity because the acts of the defendants:
(1) Constitute an unlawful interference with his business, inflicting upon him money damages for which the remedy at law is inadequate;
(2) Are trespasses upon his property, and their repetition would be continued trespasses, working not only injury to complainant, but permanent injury to him, and that he is entitled to an injunction to prevent irreparable mischief, and to suppress multiplicity of suits and oppressive and interminable litigation;
(3) Commit waste, and are in destruction of complainant's means of subsistence, and the permanent ruin of his property and crops, and his loss of harvests and trade; and he comes into equity to remove the annoyance and stop the constantly recurring grievance.
(4) Render it necessary that complainant and his property be protected pending the settlement by the court of the rights and liability of the parties.
That if the said chapter 651 of the Private Acts of 1919 applies to Hamilton county, and if the same can be so construed as to require the farmers and property owners to construct any of the kinds of fence described in said act, the same is unconstitutional and void, for the reason that it would be so unjust and unreasonable in its application that it would result in depriving the complainant and others of their property without due process of law, and without adequate compensation. And in this connection complainant shows that after the passage of the act of 1899, hereinbefore referred to, the fences around the farming lands in Hamilton county were removed and permitted to run down; and now to require the property owners to refence their property would in the first place require almost, if not altogether, a physical impossibility, because of the difficulty, and real impossibility, in obtaining the labor and material necessary, and, in the second place, the expense of fencing would be so great that it would be wholly out of proportion to the value of the land, and in many cases the cost of fencing would exceed the value of the land.
The defendant demurred on the following grounds:
(1) The Act of 1899, chapter 23, amended by chapter 114 of the Acts of 1901, has been repealed and suspended by subsequent legislation, and it is not in effect in Hamilton county.
(2) The bill does not show that the complainant keeps a lawful fence around his farm premises; but it shows that he does not keep and maintain a lawful fence.
(3) Private Acts of 1919, c. 651, does apply to Hamilton county.
(4) This act of 1919, chapter 651, is not void or unconstitutional.
(5) This act of 1919, chapter 651, does apply to Hamilton county, because the census of 1920 will not be in operation until published and promulgated.
(6) This act of 1919, chapter 651, does apply to Hamilton county, because the James County Abolishment Act did not become effective until after chapter 651 of the act of 1919 went into effect.
(7) This act of 1919, chapter 651, does apply to Hamilton county, because it did take effect from its passage, and the James County Act took effect thereafter.
(8) This act of 1919, chapter 651, does apply to Hamilton county, because it took effect under the census of 1910, and that census was not affected by the James County Abolishment Act.
(9) This act of 1919, chapter 651, repealed or suspended all former law affecting fences, and the running at large of stock, and it is the law governing the defendant...
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