Atl. Coast Lumrer Corp. v. E. P. Burton Lumber Co

• Decision Date: 05 July 1911
• Citation: 71 S.E. 820,89 S.C. 143
• Court: South Carolina Supreme Court
• Parties: ATLANTIC COAST LUMRER CORPORATION. v. E. P. BURTON LUMBER CO.

89 S.C. 143

71 S.E. 820

ATLANTIC COAST LUMRER CORPORATION.

v.E. P. BURTON LUMBER CO.

Supreme Court of South Carolina.

July 5, 1911.

1. Injunction (§ 132^*) — Preliminary Injunctions—Scope of Remedy.

Where plaintiff was not in possession, a preliminary injunction restraining defendant from cutting or removing timber should not have prohibited defendant from entering the land, and it was proper to modify the injunction, so as to allow defendant to saw timber already cut, thereby preventing its loss, as an interlocutory injunction is to preserve the existing status during the litigation, and will not be allowed to have the effect to transfer property from one in possession to another who claims it.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 132.*]

2. Injunction (§ 136*) — Preliminary Injunction—Grounds.

Where plaintiff, a lumber company, seeking an injunction against another company which it alleges is trespassing on its property, does not allege that plaintiff is in possession, or that defendant is insolvent, or that the injury to plaintiff is irreparable, the court may refuse a preliminary injunction and leave plaintiff to its remedy at law.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.*]

Appeal from Common Pleas Circuit Court of Berkeley County; John S. Wilson, Judge.

Action by the Atlantic Coast Lumber Corporation against the E. P. Burton Lumber Company. From an order modifying a preliminary injunction, plaintiff appeals. Affirmed.

Willcox & Willcox and Octavus Cohen, for appellant.

Nathans & Sinkler, for respondent.

HYDRICK, J. Plaintiff brought this action for damages and injunction, alleging that it is the owner in fee of the land described in the complaint, and that defendant had trespassed thereon, and had threatened to continue trespassing thereon, by cutting and removing the timber therefrom. Upon the verified complaint, Judge Wilson granted an order restraining defendant from cutting or removing timber from the land in dispute, or from entering thereon. Plaintiff was required to give an injunction bond, as provided by statute, in the sum of $5,000. The defendant answered, admitting that it had been and was cutting and removing the timber, hut denied plaintiff's title to the land.

Upon the answer, which was verified, and the affidavit of E. H. Burton, president of the defendant company, from which it appeared that defendant was and had been in actual possession of the land in dispute, and that before the restraining order was issued a large quantity of timber had been cut, which was then lying on the ground and would be ruined, unless it was sawed into lumber before the litigation could be ended, and that defendant alone had the necessary logging equipment to handle it, the circuit judge, on...