Crew v. W.T. Smith Lumber Co.

• Decision Date: 19 February 1959
• Docket Number: 3 Div. 823
• Citation: 109 So.2d 721,268 Ala. 628
• Court: Alabama Supreme Court
• Parties: Robert Henry CREW v. W. T. SMITH LUMBER CO. et al.

Page 721

109 So.2d 721

268 Ala. 628

Robert Henry CREW v. W. T. SMITH LUMBER CO. et al.

3 Div. 823.

Supreme Court of Alabama.

Feb. 19, 1959.

J. O. Sentell, Jr., Montgomery, for appellant.

Poole & Poole and Wm. Hamilton, Greenville, for appellees.

STAKELY, Justice.

This is an appeal by Robert Henry Crew from a final decree rendered in the Circuit Court of Butler County, in Equity, in which W. T. Smith Lumber Company, a corporation, was complainant and Robert Henry Crew and B. C. Owen were respondents.

The original bill filed by W. T. Smith Lumber Company averred that the complainant was the owner of certain trees and timber growing, standing, lying and being on certain described land. It further averred that complainant obtained title to said timber and the right to remove the same from the land from the owner of the land by deed and that the respondent B. C. Owen is now the owner of that land, subject to the timber conveyance.

It is further averred that B. C. Owen is in the peaceable possession of said land, claiming to own the same in his own right and that no suit is pending to enforce or test the validity of the title to said land, but that the title of the respondent, B. C. Owen, is denied or disputed by respondent, Robert Henry Crew, who claims or is reputed to own or claim some interest in said land or some part thereof.

It is averred in the bill that the complainant 'is now engaged in the cutting of the aforesaid timber,' and that Robert Henry Crew is interfering with the complainant in the cutting and removing of said timber, and has by threats of personal violence prevented the cutting and removing of same. It is also averred that there is a time limit for cutting and removing the timber and that if complainant is prevented from cutting said timber during said time limit, it will suffer irreparable loss and damage. The bill prays for a decree permanently enjoining the respondent, Robert Henry Crew, from intimidating and interfering in the cutting and removal of the timber, for the quieting of complainant's title to the timber and for general relief.

The original bill when construed most strongly against complainant shows that the only injunctive relief sought is for the purpose of preventing threats and intimidations against agents, servants employees and contractors of complainant. In this respect the original bill in the instant case differs from the bill in the case of Green v. Mutual Steel Co., Inc., Ala., 108 So.2d 837.

The respondent, B. C. Owen, filed a demurrer, answer and cross bill to the original bill. The cross bill which makes Robert Henry Crew the cross respondent, avers that the cross complainant, Owen, owns and is in the peaceful possession of the land described in the cross bill and that Crew claims or is reputed to claim some right, title or interest in or incumbrance on said land. The cross complainant, Owen, prays for the quieting of title and for general relief.

The respondent, Robert Henry Crew, filed a demurrer to the original bill. There followed a decree by the court overruling the demurrers of both respondents to the original bill.

B. C. Owen amended his cross bill against Crew by adding another aspect, which averred that Owen and Crew are coterminous landowners and that there is a dispute as to the boundary line between their respective lands. The prayer to this aspect is that a true boundary line be determined. This amendment was filed on the day preceding the hearing in open court of the cause and the entering of the final decree. No answer or other pleading to this amendment was filed by the respondent, Robert Henry Crew.

The final decree described the true and correct boundary line between the property of B. C. Owen and the property of Robert Henry Crew. The decree further granted the complainant, W. T. Smith Lumber Company, an extension of time for the cutting and removing of the timber claimed. And finally the decree permanently enjoined the appellant, Robert Henry Crew, from interfering in any way with the cutting and removing of the said timber by the complainant.

I. It is insisted that the lower court erred in overruling the appellant's demurrer to the original bill of complaint filed by W. T. Smith Lumber Company. It does not appear from the bill of complaint on exactly what theory the complainant bases its prayer for a permanent injunction enjoining the respondent, Robert Henry Crew, from intimidating and interfering with the agents, servants, employees and contractors in the cutting and removal of timber from said land. Under the allegations of the bill before us we do not consider that the equity court has jurisdiction to grant such relief. The case of Montgomery & W. P. R. Co. v. Walton, 14 Ala. 207, supports this view. In that case the complainants were building a road over a strip of land to which they had secured the title. The bill of complaint alleged that complainants were prevented from proceeding with their work by the threats of the defendant that he would kill or injure their agents, if they attempted to work on the land. This court after saying that the allegations of the bill show that the complainants have obtained the right of way over the land of the defendant, in denying the jurisdiction of the equity court said:

'The company, then, have the right to go on and construct, and use the road, and the allegations in the bill that the defendant threatens to obstruct them in the use and construction of the road, and threatens personal violence to the agents of the company, if they attempt to erect the road, cannot give this court jurisdiction.

'The rule is too well established to admit of controversy, that equity cannot interpose by way of injunction to restrain the commission of a personal trespass, although it may be threatened.'

The rule set forth in the foregoing case has been qualified as shown by the following excerpt from Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657, where the court quoted with approval the following from Port of Mobile v. Louisiville & Nashville R. Co., 84 Ala. 115, 4 So. 106, 112:

'* * * The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction, if it be also a violation of property rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights. * * *'

In Morris v. Bailey, 261 Ala. 281, 74 So. 2d 447, 448, this Court said:

'We are of the opinion that appellees are not entitled to the permanent injunction prayed for. As ground for injunctive relief, appellees' bill merely states that 'respondent is interfering with the complainants' possession of said property and has demanded the said tenants to pay rent for the property to him or remove from the premises. Respondent is seriously jeopardizing complainants' relations with their tenants.' Also, the bill states that 'unless the respondent is restrained by the Court, he will continue to interfere with complainants' possession of said property and will harass the complainants.'

'* * * The bill does not state that appellant has trespassed upon the land, in addition to the alleged interference. It is our opinion, however, that the failure to allege any such trespass does not change the remedy available in the instant case. Even if trespass were averred and proved, as well as the alleged interference, a permanent injunction could not be granted in the absence of further allegations and proof. See Deegan v. Neville, 127 Ala. 471, 29 So. 173. * * *'

In the case of Ex parte Hammett, 259 Ala. 240, 66 So.2d 600, the basis of the suit was a telephone conversation where the defendant is alleged to have used abusive and insulting language to the plaintiff. It was held that such language when unaccompanied with any act of trespass or defamation does not give rise to a cause of action. So in the instant case mere threats unaccompanied by trespass does not give rise to a cause of action. Furthermore our cases hold that where a bill has no equity, it will not support an injunction. McHan v. McMurry, 173 Ala. 182, 55 So. 793.

Evidently in an effort to meet the requirements of the foregoing cases, it is alleged in the bill of complaint that irreparable damage will be suffered by the complainant if the injunction prayed for is not granted. But the only facts set out in support of this allegation are that the time allowed for cutting and removing the timber from the land will expire on a certain date and if the complainant is prevented from cutting said timber during the time limit, it will suffer irreparable loss and damage. It is also averred that if the threats and intimidations of respondent, Robert Henry Crew, are not enjoined the complainant will be required to move its mill and machinery and will thereby suffer damages which cannot be reasonably compensated in a court of law. We are unable to determine from the facts alleged why such damages cannot be reasonably compensated in a court of law. Mere averment that irreparable damage will result will avail the pleader nothing unless supported by proper charges of facts. Morris v. Bailey, 261 Ala. 281, 74 So.2d 447; Bowling v. Crook, 104 Ala. 130, 16 So. 131.

We conclude that the equity court had no jurisdiction to grant the injunction prayed for.

Title 47, § 49(1), Code of 1940, 1955 Cumulative Pocket Part, provides that standing timber and trees when owned by any person other than the owner of the land on which they stand are to be deemed chattels and not real property. Obviously trees and timber which have been cut are chattels. Hence, the bill seeks to have title to personal property quieted. Equity has no jurisdiction to quiet or protect title or right to personal property. Bailey v. Folsom, 207 Ala. 329, 93 So. 479; Mobile Towing & Wrecking Co. v. Hartwell, 206 Ala. 7, 89 So. 446.

Since there is no equity in either...