East Lake Lumber Co v. East Coast Cedar Co

• Decision Date: 23 October 1906
• Citation: 55 S.E. 304,142 N.C. 411
• Court: North Carolina Supreme Court
• Parties: EAST LAKE LUMBER CO. v. EAST COAST CEDAR CO. et al.

55 S.E. 304

142 N.C. 411

EAST LAKE LUMBER CO.

v.EAST COAST CEDAR CO. et al.

Supreme Court of North Carolina.

Oct. 23, 1906.

1. Injunction — Jurisdiction—Injuries to Real Property—Title.

In order to justify an injunction to restrain injuries to property, plaintiff's title must either be admitted, must be manifestly good, or must have been established by a legal adjudication, unless such relief is required pending an action to establish such title, and the threatened injury must be of such a peculiar nature as to cause irreparable damage.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 8, 14.J

2. Same—Trespass—Cutting Timber.

Where, in trespass for the cutting of timber, defendants acted in good faith in all respects, and had prima facie title to three tracts of land in controversy, and plaintiff made no claim of title to such tracts, or either of them, it was error for the court to include them in an injunction restraining defendants from cutting timber on a large body of land claimed uy plaintiffs, with certain designated exceptions.

3. Deeds—Description—Exceptions.

A party claiming land to be within an exception in a patent has the burden of proving such fact.

4. Public Lands —Patent —Description — Certainty.

A patent to state land described the same as containing 100, 000 acres, and contained an exception of land "within which bounds there hath been heretofore granted 22, 633 acres, and is now surveyed and to be granted to P. 9, 000 acres, which begins at J.'s northeast corner of 2, 000 acre grant on Mill Tail and runs south and east for complement" Held, that such exception was not invalid for uncertainty of identification.

Appeal from Superior Court, Dare County; Neal, Judge.

Suit by the East Lake Lumber Company against the East Coast Cedar Company and others. From an order granting an injunction pendente lite, defendants appeal. Reversed in part.

Civil action in the superior court of Dare county, heard before Neal, J., at Chambers, on motion for an injunction. The plaintiff brought the action to restrain the defendants from trespassing on the land described in the complaint by cutting and removing timber therefrom, some of the defendants having a large plant and being engaged extensively in the timber business. The court granted an injunction to the hearing, and the defendants appealed.

The plaintiff claimed to be the owner of a large body of land in Dare county, which was granted to John Gray Blount, September 7, 1795, and said to contain 100, 000 acres, according to the quantity given in the grant, but in fact a much larger acreage, that is, about 167, 500 acres. The grant is said to embrace all of the county of Dare, except Roanoke, and perhaps Durant Islands and the Banks. It contains an exception as to senior grants and entries which is thus stated in the grant: "Within which bounds there hath been heretofore granted 22, 633 acres, and is now surveyed and to be granted to Mr. Geo. Pollock, 9, 600 acres of which begins at Samuel Jackson's northeast corner of 2, 000 acres grant on Mill Tail and runs south and east for complement." As the context shows that the word "of" was evidently inserted in the copy by mistake, we have compared it with the original in the office ofthe Secretary of State and find this to be so. A correct copy fs set forth In Manufacturing Co. v. Frey, 112 N. C, at page 159, 16 S. E., at page 902. The word "of should be stricken out and the comma should be placed after the word "acres" and before the word "which" instead of after the word "Pollock" and before the figures "9, 600, " so that the exception when properly quoted will read: "Within which bounds there hath been heretofore granted 22, 633 acres, and is now surveyed and to be granted to Mr. Geo. Pollock 9, 600 acres, which begin at Samuel Jackson's northeast corner of 2, 000 acres grant on Mill Tail and runs south and east for complement." The plaintiff asserted title to the entire body of land covered by the said grant, with which it claimed to have connected itself by mesne conveyances. The defendants denied they had committed any trespass on land alleged to be owned by the plaintiff, and contended here that the plaintiff had not shown any such trespass by the proof and further, they averred that they have cut no timber except on land which is either excepted in the Blount grant, under which the plaintiff claims, or the title to which, as being in the defendants, or those under whom they claim, the plaintiff is estopped to deny, the title to the said lands having been fully adjudicated, and, as to some of them, the location fixed, in judicial proceedings by which the plaintiff is in law bound and concluded. The two defendant companies disclaim any title to the land in dispute, and deny that they have cut any timber on the same or on any land of the plaintiff, or that they have ever authorized any one else to do so, but aver that they have not recently been engaged in the business of cutting timber in Dare county. The plaintiff alleges that all of the defendants are operating under the name of the Buffalo City Mills, Incorporated, and have changed their business name from time to time for the purpose of defeating the process of the court and thereby escaping liability for their unlawful trespasses. This is denied by the defendants and the countercharge made that the plaintiff is an insolvent, foreign corporation, and a land speculator; that the title to the land claimed by it is radically defective and its boundaries have not been shown; and that the land claimed to be embraced by its outer lines is occupied by hundreds of people whose titles and right of possession are undisputed and unassailable. The defendant sets forth circumstantially its title to the tracts of land upon which it has cut timber. As to the McRae tract of 5, 080 acres and the Blount-Rodman tract of 5, 000 acres, they allege that the plaintiff is estopped by certain judicial proceedings to deny the title of those under whom the defendants claim and justify their acts, which are alleged to be trespasses, and the defendants deduce their title to these tracts from the state, by showing grants duly issued for the same, and judicial proceedings and mesne conveyances, which put the said title in the Buffalo City Mills, Inc., Andrew Brown, and A. J. Brown, respectively, it being the title under which A. J. Brown claims and his codefendants so justify. As to the other land, known in the case as the "Pollock tract, " the defendants introduced the record of a suit in equity pending in the United States Circuit Court, between the plaintiff and the Buffalo City Mills, Incorporated, and referred specially to the third section of the complainant's bill, in which it is admitted that the said tract of land is not covered by the John Gray Blount patent, but is excepted therefrom, the specific admission being that the exception in that grant, heretofore mentioned, comprises 22, 633 acres previously granted and the Pollock survey of 9, 600 acres for which a grant was to be issued and was in fact afterwards issued to George Pollock upon his entry and survey. This conforms the description of the exception in the Blount grant to what we have said is the correct one. The defendants then show that Pollock's title was thereafter acquired by A. J. Brown under whom the other defendants, except the two corporations, justify. The plaintiff admitted in this case, that it did not own either the McRae or the Blount-Rodman tract, nor does the plaintiff apparently lay any valid claim to the Pollock land, 3, 000 acres of which it admits has been properly located, though it denies, perhaps, that there has been any correct location of the remainder of that tract or of the McRae and Blount-Rodman tracts. It appears that the grant for the last-named tract, which was issued September 5, 1795, antedates the John Gray Blount patent, • issued September 7, 1795, and the defendants rely on this fact, in addition to the estoppel. There was much testimony taken as to the true location of these three several tracts, the defendants alleging that they had been correctly located, and exhibiting carefully prepared maps showing the lines and boundaries, while the plaintiff insisted that they had not been identified by any competent and sufficient testimony, though apparently it does not profess to know, or to be able to state, where the metes and bounds would be with reference to the lines of the John Gray Blount patent, if they were surveyed and marked on the ground. They simply deny the defendant's location. There was also considerable testimony taken as to the locus in quo or place in which the cutting of the timber was done. The defendant contended that, according to the evidence offered by the plaintiff, the timber alleged to have been cut was standing on the McRae, the Hunning, the Belangia, and the Blount-Rodman tracts, the land lying north of the McRae tract on which the plaintiff alleges there was cutting of timber, being the Belangia tract and that on the east, the Blount-Rodman tract The plaintiff introduced the record inthe case of the East Coast Cedar Co. v. People's Bank of Buffalo, it being a suit for partition, the object of this proof being to estop the defendants (by the decree declaring the parties to be tenants in common) from denying the title of the plaintiff to the land covered by the Blount patent, the assignors of the respective parties to this action having, been parties to that suit. The insolvency of the defendant is alleged in the complaint but denied in the answer. The court enjoined the defendants from cutting trees, logs, and timber on, or removing them from, the premises described in the complaint, being the lands covered by the Blount grant, and enjoined both the plaintiff and the defendant from cutting any timber on the lands described in the McRae, Pollock, or Blount-Rodman patents until the true location thereof is established by surveys made...