Cresap v. Kemble.

• Decision Date: 26 September 1885
• Parties: Cresap v. Kemble. and Kemble v. Cresap et al.
• Court: West Virginia Supreme Court

26 W.Va. 603

Cresap

v.Kemble.andKemble

v.Cresap et al.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1885.

Decided September 26, 1885.

1. If the court has no jurisdiction, it will dismiss a bill on the hear-

ing, although there was no demurrer to the bill. (p. 606.)

2. A court of equity has no jurisdiction to settle the title and bounda-

ries of land, when the plaintiff has no equity against the party, who is holding the land. (p. 606.)

3. To warrant the interference of a court of equity to restrain a tres-

pass on land, two conditions must co-exist: first, the plaintiff's title must be undisputed or established by legal adjudication; and second, the injury complained of must be irreparable in its nature, unless there exist other grounds of equity. (p. 606.)

4. It is not sufficient in such case, that the bill contain general allegations of irreparable injury; the facts constituting such injury must be set forth, (p. 606.)

The facts of the case appear in the opinion of the Court.

A. F. Raymond for appellant.

J. Brannon and J. A. Brown for appellee.

Johnson, President:

At February rules, 1882, the plaintiff, Ruhama Cresap, filed her bill in the circuit court of Preston county against Catharine Carroll, afterwards Catharine Kemble, in which she alleged title to certain land in her bill described, situated in said Preston county. She also alleged, that " a part of her said land was in the woods, and that there was a coalbank opened on said land." The bill charges, that the defendant, Catharine Carroll," is advised and is preparing to enter on said land and drive your oratrix and her hands out of her enclosure, and cut and sell the timber and run the coal-bank," while she was restrained by an injunction until the title to the land could be tried; that she is advised," that said Catharine Carroll has not now nor ever had a deed or paper-title to said land, but claims it by virtue of repeated trespasses on the same;" that "the land in dispute is timber land with a small vein of coal on it, and if said Catharine Carroll and her hands are permitted to consume the same while she is enjoined, there will be little left to dispute about; that she is advised," that it is the province of a court of chancery to direct an issue in such a case as the present in the form of an ejectment, the only real action now left us to definitely try and settle the title to lands." She prayed an injunction, which was granted by the judge in vacation on January 16, 1882, and is endorsed on the bill. There is no allegation of insolvency in the bill nor any allegations, which show that irreparable injury would result, if the injunction were not granted.

The injunction referred to in said bill was granted by the judge of the circuit court of Preston county on July 12, 1880, which was endorsed on a bill filed by Catherine Carroll against Gustavus Cresap, Ruhama Cresap and Gustavus J. Cresap, in which the plaintiff alleges title to the same tract of land, and that it is covered with valuable white oak and other timber, and charges that defendants are engaged in cutting said white oak timber and manufacturing the same into boards, rails, &c. and are cutting and removing timber therefrom, and thus committing great waste on the said land "to the irreparable damage of your oratrix"; that said land is valuable principally on account of the large and fine white oak timber thereon; that the said trespasses are destructive of the substance of the property and of what gives said property its chief value or a material part thereof, and that the injury actual and threatened is irreparable and not capable of pecuniary compensation; that plaintiff has instituted and has now pending on the law side of the court an action of trespass against said defendants, yet they persist in committing great waste. She prays an injunction against the defendants, their agents, &c, from cutting or sawing timber, brush or bushes on the said tract of land, and from removing the same, or any clapboards, staves, rails, poles or timber of any kind from said land" and for general relief. This bill does not charge the insolvency of the defendants, nor does it state any facts to show, that the trespass, if not enjoined, could not be compensated in damages.

In May 1882, the said Catharine Carroll filed an amended bill, in which she alleged her inter-marriage with Dr. Julius C. Kemble and claims, that she has the right to carry on the suit in her name as Catharine Kemble without joining: her husband with her, as the suit relates alone to her separate estate. She sets up her claim of title more fully, and repeats the prayer of the original bill. On April 12, 1883, Catharine Kemble filed her answer to the bill of Ruhama Cresap, denying her title to the land, &c. In September 1880, Ruhama Cresap, Gustavus Cresap, and Gustavus J. Cresap filed their joint answer to the bill of Catharine Carroll, denying her title to the land, &c. At July rules 1882, the said defendants filed their joint answer to the amended bill. On August 17, 1882, Ruhama Cresap filed her separate answer to the amended bill of Catharine Kemble, denying the title of the plaintiff's &c. Numerous depositions were taken, particularly upon the question of title. On April 16, 1883, the two causes by consent were heard together upon the pleadings and proofs; and in the cause of Catharine Kemble against Ruhama Cresap and others it was decreed that the injunction be made perpetual, and that she have costs,...