Davis v. Reed

• Decision Date: 15 July 1859
• Citation: 14 Md. 152
• Parties: CURTIS DAVIS and Others v. AMELIA REED.
• Court: Maryland Court of Appeals

14 Md. 152

CURTIS DAVIS and Others v. AMELIA REED.

Court of Appeals of Maryland.

July 15, 1859

Appeal from the Equity Side of the Circuit Court for Caroline County.

This appeal is taken from an order granting an injunction upon a bill filed by the appellee against the appellants.

The bill alleges that Isaac Wright, who died in 1850, by his will, devised to his daughter, the complainant, a tract of land called the " Old Nichols Farm," whereon she now resides; that this land is part of that originally owned by Isaac Nichols, and was conveyed by James Brown, as insolvent trustee of Daniel Caulk, to Wright, in 1827; that the complainant has been in the quiet and peaceable possession of the arable land included in said farm, ever since the decease of her father, and also of the woodland attached thereto, and that her father was in the peaceable possession of the same from the time of his purchase thereof to his death; that among the land always included, and held and used, occupied and cut upon, as part of this farm, by her father, and all tenants and occupants under him, is an adjoining piece of timber land, containing about thirty-five acres, more or less; that about the month of January 1855 the defendants commenced cutting and destroying the timber upon the same, and are now engaged with a large force, from ten to fifteen in number, cutting and destroying the said timber, and have announced their determination to cut and carry off all the timber thereon, despite the entreaties and remonstrance of the complainant; that her said tract of land has no more timber thereon than is absolutely necessary for said farm, including the part now nearly cut down and destroyed by the defendants; that the destruction of the said timber land will be of great and almost irreparable injury to her said farm; that no compensation in damages, for the actual value of said timber, will compensate her for such destruction of said timber; that she intends instituting suits of ejectment and trespass against the said parties, but before the same can be brought to trial, all the wood and timber on said land will be destroyed and carried off, as one-half thereof is now cut down, and the said parties have announced their intention not to desist until the whole is cut down. The bill then prays for an injunction restraining the defendants and their agents and servants, from all manner of cutting and waste upon said tract of timber land, and from hauling off or removing from the same the timber and wood already cut and now on the premises.

The bill refers to the will of Isaac Wright and the deed from Brown to Wright, as the title papers under which the complainant claims, and states that they are filed as exhibits with the bill and made part thereof, but they do not appear in the record, which states that " the exhibits referred to in the aforegoing bill have never been filed."

The court, (Hopper, J.,) by an order endorsed on the back of the bill, and dated the 11th of April 1855, ordered the injunction to issue as prayed, and the writ was issued on the 19th of April, the day on which the bill was filed. From this order the defendants, after filing their answer appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, JJ. Oliver Miller for the appellants.

It is evident this injunction was ordered before the bill was filed, and the exhibits have never been filed at all. There is indeed nothing in the record to show that the exhibits were ever before the judge. No bond was required by the order and the injunction issued without it. The appellants insist the order was erroneous:

1st. Because it is error, and a practice not to be sanctioned, for any judge of an equity court to exercise the high power of ordering an injunction before the bill which asks for it, and the exhibits, referred to in and accompanying it, are regularly filed in his court. The order was passed nine days before the bill was filed, and the exhibits, if before the judge, were never filed. In reviewing this order these exhibits are all important to this court, and, if in the record, they might show, by their true construction, that the particular piece of land, upon which the alleged trespass is said to have been committed, was no part of the farm in question. The Act of Assembly having allowed an appeal from such an order, the exhibits which are a part of the bill, must be before this court in order that it may revise the action of the court below in passing the order.

2nd. Because the allegations of the bill do not make out a case authorizing the granting of the injunction. The settled law of this State, upon this point, is, that where an injunction is asked for to restrain a trespass, on the ground of irreparable injury, the bill must charge the injury to be irreparable, and state such facts as will satisfy the conscience of the court, that this charge is well founded. This bill contains no such charge as the result of the acts complained of, and this court cannot assume, from the facts alleged, that the injury...