Camp v. Dixon

• Decision Date: 01 March 1901
• Citation: 38 S.E. 71,112 Ga. 872
• Parties: CAMP et al. v. DIXON et al. DIXON et al. v. CAMP et al.
• Court: Georgia Supreme Court

38 S.E. 71

112 Ga. 872

CAMP et al. v. DIXON et al.

DIXON et al. v. CAMP et al.

Supreme Court of Georgia

March 1, 1901

Syllabus by the Court.

1. The cutting and removal of timber from forest lands is a destructive trespass, and one liable in its nature to cause irreparable damage to the owners of the timber. Consequently an injunction will issue to restrain such a trespass, where it is a continuing one, which would result in denuding the land of its timber, and where the owners thereof have made large investments in sawmills and equipment preparatory to converting the timber into lumber to sell in the markets notwithstanding the alleged trespasser may be entirely solvent. In such a case the remedy at law by an action for damages is not adequate and complete, as the damage resulting to the owners of the timber in the depreciation of the value of their plant and equipment, and in the loss of expected profits, cannot be accurately and completely measured in money.

2. Even if error was committed in the admission of the evidence of which complaint is made in the cross bill of exceptions, it was not of such a character as to prejudice the rights of the defendants.

Error from superior court, Echols county; W. N. Spence, Judge.

Suit by R. J. & B. F. Camp against Dixon, Mitchell & Co. Judgment for defendants, and plaintiffs bring error. Judgment on main bill of exceptions reversed, and cross bill affirmed.

J. S Sweat and Spencer R. Atkinson, for plaintiffs in error.

Charlton & Charlton, S. T. Kingsbery & Son, and Toomer & Reynolds, for defendants in error.

COBB J.

R. J. & B. F. Camp filed an application for an injunction to restrain the defendants, Dixon, Mitchell & Co., from cutting and removing the timber from eight described lots of land; it being alleged that the plaintiffs were the lawful owners of the timber. The judge passed an order refusing to grant an injunction, and to this judgment the plaintiffs excepted.

1. The plaintiffs in error claim that the refusal to grant the injunction was erroneous for several reasons; but, under the view we have taken of the case, it is necessary to refer to only one of them.

One of the grounds upon which the plaintiffs predicated their right to an injunction was that the acts of trespass committed by the defendants were irreparable in damages. There was evidence from which the judge could have found that the defendants were entirely solvent, and the case will be dealt with as if he had so found. With reference to the character of the acts committed by the defendants, as well as the character of the damages thereby sustained, the plaintiffs alleged in their petition: The defendants, having a steam sawmill in Echols county, have, without warrant or authority of law, and to the great injury and damage of plaintiffs, entered upon certain of the lots described in the petition, and engaged in cutting and removing the timber therefrom for sawmill purposes, and are threatening to enter upon others of said lots, to cut and remove the timber therefrom for the same purposes, and also to construct, maintain, and operate tram roads thereon. By reason of the wrongful acts mentioned, plaintiffs have been and will be damaged in the sum of $1,000 per lot, or other large sum. The timber on the lots of land mentioned above forms part of a body of timber purchased by the plaintiffs for the sole purpose and with the view of cutting and sawing the same into lumber for their own benefit and profit, and for the defendants to be permitted to cut and remove the same would result not only in great injury and damage to plaintiffs as aforesaid, but largely in incalculable injury and damage and irreparable loss to the plaintiffs in carrying out the plans and purposes of their sawmill business. The prayer of the petition was that plaintiffs be restrained from cutting and removing the timber, or interfering therewith in any way or manner, and from building and operating tram roads upon and through the land, and that plaintiffs have judgment for damages. By an amendment it was alleged that the plaintiffs, in addition to the sums claimed in the original petition, would be further damaged in the loss of profits they would make from the sawing and converting the timber into lumber, and irreparably damaged in being deprived of timber with which to carry on their mill business. They further alleged that the timber on the lots described in the petition, as well as on others, aggregating 37,730 acres, was purchased with the view and expectation of cutting the same at their mills in Hamilton county. Fla., and upon the faith thereof they have invested $200,000 in sawmills, planing mills, railroads, and other equipments, located on the Suwanee river below said timber, in the state and county above mentioned, expecting to use the river and such tram roads as they might construct to remove the timber from the lots to their mills, there to be sawed and converted into lumber. It is further alleged that the purpose of the defendants was not only to cut and remove the timber from the lots described in the petition, but from all other lots purchased from R. J. Nelson, and that, unless the defendants are enjoined as prayed, the damages to plaintiffs' business and investments will be irreparable. The defendants filed a demurrer to the petition on the ground that the trespass alleged is susceptible of perfect pecuniary compensation, and plaintiffs have an adequate remedy at law. Subject to the demurrer, they filed an answer denying the title of the plaintiffs and setting up title in themselves; denying that the damages would be irreparable, and setting up by way of cross action that the plaintiffs have damaged them in a named sum by procuring a restraining order stopping their mills. The defendants admit in their answer "that it is their purpose to cut and remove the timber from the lots described in the original petition, and also from some of the other lots purchased by plaintiffs from the said R. J. Nelson." At the hearing plaintiffs introduced in evidence an affidavit of S. G. Culpepper, a portion of which is in the following language: "That he has had extensive experience in connection with the sawmill and lumber business. That he is now connected with the large sawmill and lumber business of the plaintiffs of the above-stated case, and has been for some years past. That he is familiar with all the facts stated, not only in the original petition, but in the amendment proposed thereto sworn by B. F. Camp before deponent on November 15, 1900, and that the same are true. That, for plaintiffs to be deprived of the use of the timber purchased by them, they would not only lose the profits to be made therefrom, but have to shut down their mill. The investments made therein and in connection therewith would be a total loss, unless plaintiffs could find a purchaser for secondhand mill, machinery, and appliances, and even then they could not reasonably hope to obtain half price therefor. Or, if they could procure timber elsewhere, and were able to move, the cost and expense thereof would be nearly equal to the original investment."

Do the facts alleged in the petition and amendment, as well as those stated in the foregoing affidavit, make a case for the granting of an injunction? The facts as to the nature of the acts of trespass and the character of the damages were practically undisputed. The defendants did deny in general terms that the damages would be irreparable, but they offered nothing to controvert the statements as to this matter contained in the petition and the affidavit. It is difficult, if not impossible, to ascertain from the record whether the plaintiffs or the defendants are in possession of the timber in controversy. Both claim the right of possession. Both claim to have title to the timber in controversy, and both attach abstracts of their title. The chain of the defendants' title appears, however, from the abstract, to be incomplete; and the judge would not have been justified in refusing to enjoin them on the theory that they, and not the plaintiffs, were the real owners of the property in controversy. He must, therefore, have refused the injunction because he was of opinion that the plaintiffs did not show a "perfect title" to the timber, within the meaning of section 4927 of the Civil Code, and that their allegations and evidence did not show such acts of irreparable damage as to warrant the court in granting the injunction. Under the view we have taken of the case, it is immaterial whether the plaintiffs had a "perfect title," within the meaning of the section of the Code just referred to. They showed a "good title"; that is, one which prima facie would have authorized a recovery in ejectment. And, while there was abundant evidence to show that the defendants were solvent, the acts of trespass alleged and proven were shown to be irreparable in damages.

For a long time the English chancery court declined to grant an injunction to restrain a trespass, and the exercise of this power in such a case is of comparatively modern origin; the earliest case referred to by the law writers being that of Flamang, decided by Lord Thurlow. See Moore v Ferrell, 1 Ga. 10; Bisp. Eq. (6th Ed.) § 435. Since that time the practice has been quite common both in England and in this country, but the granting of the writ has in such cases been limited to cases where the damages resulting from the acts of trespass would be irremediable or irreparable, either on account of the nature of the acts or the circumstances of the parties. The general rule on the subject has been embodied in our Code in the following language: "Equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is...