Beaver Flume & Lumber Co. v. Eccles

• Decision Date: 27 July 1903
• Citation: 73 P. 201,43 Or. 400
• Parties: BEAVER FLUME & LUMBER CO. v. ECCLES et al. [*]
• Court: Oregon Supreme Court

73 P. 201

43 Or. 400

BEAVER FLUME & LUMBER CO. v. ECCLES et al. ^[*]

Supreme Court of Oregon

July 27, 1903

Appeal from Circuit Court, Columbia County; T.A. McBride, Judge.

Injunction by the Beaver Flume & Lumber Company against William Eccles and others. Decree for plaintiff. Defendants appeal. Affirmed.

This is an appeal by defendants from a decree of the circuit court enjoining them, at the instance of the plaintiff, from cutting and removing certain timber, until a mortgage to secure the payment of $30,000, one-half payable in one year and the remainder in two years from the date thereof, given by defendant Eccles to plaintiff April 8, 1902, is fully paid. The mortgage covers 1,800 acres of timbered land, and also the timber upon about 400 acres additional, together with certain fluming privileges and rights of way, and is subject to a mortgage to the board of school land commissioners to secure a loan of $5,000. The chief or principal value of the land thus incumbered consists in the standing timber thereon, denuded of which the land itself would be practically worthless. Subsequent to the execution of the mortgage, the defendant Eccles placed valuable improvements upon the land, at a large expense to himself for the purpose of cutting and manufacturing the timber into lumber, shingles, and piling, and was actively engaged in the business when this suit was begun and a temporary injunction granted. The value of the timber is variously estimated ranging from $25,000 to $100,000. The defendants make no denial of their purpose to continue cutting and removing the timber, but say that it would take 10 years to remove the whole thereof, and that not more than one-tenth of it will be taken by them prior to the maturity of the debt, and that plaintiff's security will not be materially impaired thereby; and, further, the defendant Eccles proffers to give to the plaintiff such a bond as the court may require and approve, conditioned that he will pay all such indebtedness at maturity, or that he will pay to plaintiff any damages that it may suffer by reason of removing any such timber, and thereby reducing the value of its security.

G.W. Stapleton, for appellants.

G.C Fulton, for respondent.

WOLVERTON J.

The questions involved are (1) whether plaintiff has shown a right to the relief sought, and, if so, (2) whether the defendants are entitled to stay the injunction by executing the proffered bond.

Ordinarily a mortgagee has the right to restrain the commission of waste, where it tends to the impairment of his security. An action at law for trespass, if one lies, is not a certain nor always an adequate remedy in such cases, and it is therefore, as a general rule, unnecessary to allege insolvency of the mortgagor, or that the injury threatened is literally irreparable. 1 Jones, Mortg. (2d Ed.) § 684; 1 High, Injunc. (2d Ed.) § 693; Vanderslice v. Knapp, 20 Kan. 647. Such acts as will render the security insufficient for the satisfaction of the debt, or of doubtful sufficiency, constitute, according to the consensus of authority, an impairment of the security, through the commission of waste. Such is the conclusion reached by Mr. Justice Dickinson in Moriarty v. Ashworth, 43 Minn. 1, 44 N.W. 531, 19 Am.St.Rep. 203, citing many text-writers and adjudicated cases. Among them, see references above, and King v. Smith, 2 Hare, 239, 244; Coker v. Whitlock, Trustee, 54 Ala. 180; Buckout v. Swift, 27 Cal. 433, 87 Am.Dec. 90; Harris v. Bannon, 78 Ky. 568. See, also, State v. Northern Central Railway Co., 18 Md. 193. But, in the application of the rule, he says: "We think that the mortgagee is entitled to be protected from acts of waste which would so far impair the value of the property as to render the security of doubtful sufficiency. He is entitled to have the mortgaged property preserved as sufficient security for the payment of his debt, and it is not enough that its value may be barely equal to the debt. That would not ordinarily be deemed sufficient as security to one whose purpose is to secure payment, and not to become a purchaser of the property at its market value. And not only must it be considered that the mortgage is held to secure payment of the debt, and not for the purpose of converting the mortgagee into a purchaser, but that, if the debt is not yet mature, it is to be considered whether, during the time which may elapse before maturity, the present value of the property may not become depreciated from causes not now known." The rule is applicable where realty is mortgaged in the usual way, and constitutes the embodiment of the security. The mortgagor may do many things as the owner of such an estate, and use it in the...