Buskirk v. King

• Decision Date: 04 February 1896
• Docket Number: 144.
• Citation: 72 F. 22
• Parties: BUSKIRK et al. v. KING.
• Court: U.S. Court of Appeals — Fourth Circuit

72 F. 22

BUSKIRK et al. v. KING.

No. 144.

United States Court of Appeals, Fourth Circuit.

February 4, 1896

John A Hutchinson and W. P. Hubbard (Z. T. Vinson, on the brief) for appellants.

Maynard F. Stiles and E. L. Buttrick, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

GOFF Circuit Judge.

This is an appeal from an interlocutory decree by which an injunction was granted. The appellee, Henry C. King, claiming to be the owner of a tract of 500,000 acres of land, a part of which was said to be located in the state of West Virginia instituted his action of ejectment in the circuit court of the United States for the district of West Virginia against U. B. Buskirk and M. B. Mullins, who, it was charged, were in possession of a certain portion of said land. The action of ejectment was pending and undetermined when King tendered to the court his bill of complaint against Buskirk and Mullins in which he claimed that he was entitled to the protection of the court on its equity side during the pendency of said action at law, and in which he charged that said parties were in possession of the land, and were preparing to cut and remove large quantities of valuable timber from the same; the prayer of the bill being that they be restrained by injunction from committing waste, or doing any act which would make the land less valuable, until the trial of the action of ejectment. The bill sets out the title of King to the tract of land mentioned, alleging that by patent dated June 23, 1795, the commonwealth of Virginia granted the same to one Robert Morris, and that by subsequent conveyances-- all of which are set forth with particularity, but it is not deemed necessary to describe them here-- the title to said land was regularly and duly vested in him. It is set forth in the bill that the part of such land claimed and held by the defendants is heavily timbered; that because thereof it was purchased by the plaintiff, who had expended large sums of money in acquiring it, and in preparations for utilizing and marketing the timber, which, it is alleged, constitutes its chief value, and which defendants were then cutting and removing against the remonstrance of King, of whose title to the said land they were fully advised. The motion for an injunction was passed upon by the court below on the 3d day of July, 1895, the court considering the bill and exhibits, the answer and exhibits, the affidavits filed by the plaintiff, and the affidavits and depositions taken and filed by the defendants. The answer denied plaintiff's title, set up that the land claimed by and in possession of the defendants was not located within the boundaries of the grant to Morris, and alleged in general terms the forfeiture of the plaintiff's title, and an outstanding title in the state of West Virginia on account of such forfeiture. It also claimed title to said land in Mullins by conveyance from one L. D. Chambers and otherwise, not required to be now set forth, admitted the cutting and removing of the timber, and insisted on defendants' right to do so; the defendant Buskirk alleging that he was the owner of the timber by purchase from Mullins. The court below granted the injunction as prayed for by the plaintiff, and from such decree the defendants appealed.

In disposing of the questions raised by the assignments of error, we do not think it proper to decide in this suit, at least on this appeal, those presented by counsel for appellants relating to the identity and forfeiture of the land in controversy. The record, as made below, does not fully present them; nor were they, if we may judge from the pleadings and testimony, relied upon by counsel when the motion for the injunction was under consideration, and the court below evidently intended that they should be examined into and decided during the trial of the ejectment. The exhibits filed with the bill and answer show, as to the matter of identity, a contention about which there is an evident conflict in the testimony, which makes it peculiarly fit that all questions connected therewith should be submitted to the decision of a jury. While we think that the court to which an application for an injunction is made in cases similar to this, in which the plaintiff's title is drawn in question, should consider this matter of forfeiture when the same is properly pleaded, and refuse the restraining order when it appears that the title under which the plaintiff claims has been in fact forfeited, and while we do not intend to say that this court will not, on a record fairly presenting it, determine that question, still we are compelled to rule that the case as made below did not authorize that court to pass upon, and will not justify us in now deciding, the questions relating to the forfeiture of the plaintiff...