McKinzie v. Mathews

• Decision Date: 31 January 1875
• Citation: 59 Mo. 99
• Parties: MARTIN MCKINZIE, Appellant, v. GEORGE MATHEWS, et al., Respondents.
• Court: Missouri Supreme Court

59 Mo. 99

MARTIN MCKINZIE, Appellant,

v.GEORGE MATHEWS, et al., Respondents.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Lawrence Circuit Court.

H. C. Young, for Appellant.

Henry Brumback, for Respondent.

I. The bill must allege peculiar circumstances to show that the injury is irreparable, such as the insolvency of defendant and the like. (Burgess vs. Kattleman, 41 Mo., 487; James vs. Dixon, 20 Mo., 79; Waterman vs. Johnson, 49 Mo., 410; Jerome vs. Ross, 7 Johns. Ch., 315; Ross vs. Page, 6 Ohio, 167.) But the bill sets forth no facts. It simply states the conclusion of law.

II. An injunction will not lie to prevent the commission or repetition of a trespass in entering and cutting down timber on land, of which plaintiff is in possession as owner--he having an adequate remedy at law for the trespass, and nothing appearing in the case so special or peculiar as to call for that particular relief. (Hill. Inj., p. 322, § 3; p. 331, § 10.)

III. If defendants were in possession, this fact should be stated, also the nature of their holding, whether as plaintiff's tenants, or, claiming a limited estate of any description. If defendants claimed the fee adversely, it should appear that some steps had been taken by plaintiffs to determine the title.

IV. A demurrer in chancery does not admit the facts charged in the bill. (1 Greenl. Ev., 589, § 551; Comm. Bk. v. Buckner, 20 How., 125; Bac. Abr. “Pleas,” No. 3; Chitty Pl., 662.)

V. Counsel fees should be allowed as part of the damages. (Uhrig vs. City of St. Louis, 47 Mo., 529.)

NAPTON, Judge, delivered the opinion of the court.

This was a petition for an injunction. The facts stated in the petition were, that the petitioner was the owner of a certain tract of land described therein; that Mathews & Brumback threatened to commit waste on it, by cutting down and hauling away timber from it--which would be an irreparable loss to said land. An injunction was therefore asked, to restrain said defendants from cutting any timber or committing any waste on said land, and for such other relief, etc. The application was made to the Circuit judge, at chambers, in August, 1871, and an injunction was directed, upon bond being given by the petitioner. The bond was given and the injunction issued August 16th, 1871.

At the May term, 1872, of the Circuit Court, a demurrer was filed to this petition on the ground that the facts stated in the petition furnished no ground for the relief prayed, inasmuch as no insolvency was alleged, nor was it averred that there was not an ample and complete remedy at law; nor was there any allegation that any action was pending for the possession of the land upon which defendants were said to have an intention of cutting timber. The demurrer was sustained, but nothing further appears to have been done at that term.

On Dec. 10th, 1872, the defendants filed their motion to dissolve the temporary injunction, and for an assessment of damages. This motion was sustained and, neither party requiring a jury, the court proceeded to assess the damages upon the testimony submitted.

The defendant, Mathews, on this inquiry, testified that he had a contract with Brumback to deliver to him $200 worth of lumber; that he had cut the logs from which the lumber was to be sawed, and as he could not use them, they had greatly depreciated in value, and his loss on this item he estimated at $180. His expenses attending court amounted to $13.50. He was also prevented from clearing eight or nine acres of land that he intended to clear, and also from making rails to replace a fence that had been washed away by the flood, which he estimated at $180. His lawyer's fee was $75.

The plaintiff objected to this evidence because the defendants admitted by their demurrer, that the facts stated in the petition were true, and that the plaintiff was the owner of the land. This objection was overruled, and the plaintiff excepted.

This witness also stated that he was in possession of the land and bought it of the railroad company. To this evidence objection was also made on the ground that the defendants, by their demurrer, admitted the ownership of the land.

Brumback, the co-defendant, testified that he was injured to the amount of $40, by reason of an agreement with Mathews to get a lot of timber which in consequence of the injunction, he had to procure elsewhere at an advance of $40 over the price he had agreed on with Mathews. This evidence was objected to, because irrelevant and inconsequential, but the objection was overruled.

The only evidence offered by plaintiff was the demurrer. The instructions given for the defendants declared the law to be, that the defendants were entitled to damages in whatever amount they may have sustained loss by reason of the injunction, in interrupting their business and putting them to additional expense in carrying on the same, and for their reasonable attorney's fees in resisting the injunction, and for their loss of time in the defense of the suit.

The plaintiff asked the following declarations of law: “That the defendants have admitted by their pleadings that the lands mentioned in plaintiff's petition belonged to plaintiff and were the property of plaintiff, and hence, defendants cannot recover any...