Gause v. Perkins

• Decision Date: 30 June 1857
• Citation: 69 Am.Dec. 728,56 N.C. 177,3 Jones 177
• Court: North Carolina Supreme Court
• Parties: WILLIAM GAUSE v. CHURCHILL PERKINS.

3 Jones Eq. 177

56 N.C. 177

69 Am.Dec. 728

WILLIAM GAUSE

v.CHURCHILL PERKINS.

Supreme Court of North Carolina.

June Term, 1857.

A bill alleging that a trespasser was about to commit irreparable injury by boxing and working turpentine trees, and by cutting timber and making staves on land fit only to be cultivated for these products, without an averment of the defendant's insolvency, will be dismissed on motion.

APPEAL from the Court of Equity of Brunswick county, Judge DICK presiding.

The plaintiff in his bill alleged that he was the owner in fee simple of the land in question, and that for several years past he has been in possession of a part of it by building, fencing, and cultivating such part continually up to the date of his bill; that the most of the land is fit for the production of turpentine, staves and timber, and for but little else; that the defendant, in 1852, by his agents and servants, against the will of the plaintiff, entered upon the premises and boxed the pine trees for procuring turpentine, and has carried on the business of making turpentine on this land, and carrying it off and selling the same in large quantities; that he has boxed some 25,000 trees; that he is overworking these trees, and that in a few years they will be worn out, useless and unfit for making turpentine; that “he is now engaged in committing other waste, spoil and destruction upon the said land, and is thus doing an irreparable injury to the said land, and will render the same utterly useless and valueless, unless he is restrained by the injunction of this Honorable Court.” It also charges, that the defendant has no interest or title in the land, or any part of it; that the plaintiff had instituted an action at law for the trespasses above-mentioned, and that the same was still pending, but that no amount of damages he may recover, at law, will compensate for the injury threatened to his property.

The prayer of the bill is for an injunction and for an account.

The answer of the defendant denies that the plaintiff has title to any part of the land used by him, but says that all thereof is his own property by a valid title. He denies that the process of cultivation, as conducted by him, is calculated irreparably to injure the land, but that he is pursuing the business in a prudent manner. He avers also, that he is entirely solvent, and worth much more than the whole value of the land claimed by the plaintiff, so that there would be no difficulty in obtaining remuneration, at law, for whatever he might recover from defendant by the way of damages.

Defendant moved to dismiss the bill for want of equity, which motion was refused by his Honor, Judge DICK; whereupon the defendant appealed to this Court.

Strange, for plaintiff .

London and Moore, for defendant .

PEARSON, J.

The general rule is, Equity does not extend its jurisdiction either to offences against the public, or to civil trespasses. In reference to the former no exception has ever been made; but in reference to the latter an exception has been allowed after much hesitation, and jurisdiction assumed for the prevention of torts or injuries to property, by means of the writ of injunction, under certain restrictions, namely, two conditions must concur in order to give jurisdiction--the plaintiff's title must be admitted, or be established by a legal adjudication, and the threatened injury must be of such a nature as will cause irreparable damage.

The ground of the first restriction is obvious; a court of Equity cannot pass upon the legal title; to do so would convert a bill in Equity into an action of ejectment. It is not necessary, however, that the legal title should be established before the aid of a court of Equity is asked for, because the injury may be committed before a trial at law can be had, and when the bill sets out that an action has been, or is about to be, instituted for the purpose of establishing the title, Equity will exert its power of injunction in aid of the action at Law, by taking care of the subject-matter of the action, but without assuming jurisdiction to decide the question of title. Irwin v. Davidson, 3 Ire. Eq. 316.

The ground of the second restriction is equally obvious. If a court of Equity interfered to prevent an alleged trespasser from doing ordinary acts of ownership, such as cultivating the land, clearing and opening new fields, &c., a bill for an injunction would accompany a declaration in ejectment, almost as a matter of course, causing not only much private loss, but great detriment to the public. Fields already cleared would lie idle, woodland that, in a country like ours, ought to be cut down and cultivated, would stand wild and unproductive, and the valuable products of our forests would no longer swell the tide of trade.

In the application of this restriction, much difficulty occurs in defining what injury is irreparable. The word means that which cannot be repaired, retrieved, put back again, atoned for. The most absolute and positive instance of it is the cutting down “ornamental trees,” such as the noble oaks in our State-House grove. “A tree that is cut down cannot be made to grow again.” But the meaning of the word “irreparable” pointed at by this example, is not that which has been adopted by the courts either in England or in this State. Grass that is cut down cannot be made to grow again, but the injury can be adequately atoned for in money. The result of the cases fixes this to be the rule: the injury must be of a peculiar nature, so that compensation in money cannot atone for it; where, from its nature, it may be thus...