Griffith v. Hilliard

• Decision Date: 05 November 1892
• Citation: 25 A. 427,64 Vt. 643
• Parties: GRIFFITH v. HILLIARD.
• Court: Vermont Supreme Court

25 A. 427

64 Vt. 643

GRIFFITH

v. HILLIARD.

Supreme Court of Vermont General Term.

Nov. 5, 1892.

Appeal from chancery court, Rutland county; Taft, Chancellor.

Action by Silas L. Griffith against John H. Hilliard. From a decree sustaining a demurrer to plaintiff's bill for an injunction and dismissing the bill pro forma, orator appeals. Reversed' and modified.

J. C. Baker, for orator.

H. A. Harman, for defendant.

START, J. The defendant, John H. Hilliard, by the demurrer contained in his answer, claims that a court of equity has no jurisdiction of the matters alleged in the bill. The bill alleges, among other things, that the orator is the owner of the land in question; that its substantial value is made up of the wood and timber growing thereon; that some of the defendants, under a license from defendant, Hilliard, have entered upon the land, are engaged in cutting and drawing timber there from, and threaten to continue to do so. For the purpose of determining the question now before the court, these allegations must be taken as true. To permit this wood and timber to be cut in the manner the defendants are doing, and threatening to do, under a license from defendant, Milliard, is to permit a destruction of the orator's estate as it has been held and enjoyed. The power of a court of equity to interpose by injunction to prevent irreparable injury and the destruction of estates is well established, and this power has been construed to embrace trespasses of the character complained of in the orator's bill. Where trespass to property consists of a single act, and it is temporary in its nature and effect, so that the legal remedy of an action at law for damages is adequate, equity will not interfere; but if, as in this case, repeated acts are done or threatened, although each of such acts, taken by itself, may not be destructive to the estate, or inflict irreparable injury, and the legal remedy may, therefore, be adequate for each single act if it stood alone, the entire wrong may be prevented or stopped by injunction. Smith v. Rock, 59 Vt. 232.9 Atl. Rep. 551; Langdon v. Templeton, 61 Vt. 119, 17 Atl. Rep. 839; Erhardt v. Boaro, 113 D. S. 539, 5 Sup. Ct. Rep. 565; Iron Co. v. Reymert, 45 N. Y. 703; Power Co. v. Tibbetts, 31 Conn. 165; Irwin v. Dixion, 9 How. 28; Livingston v. Livingston, 6 Johns. Ch. (Law Ed.) 496; High, Inj. 724-727; Shipley v. Ritter, 7 Md. 408; Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694; 1 Pom. Eq. Jur. § 245; 3 Pom. Eq. Jur. § 1357; Murphy v. Lincoln, 63 Vt. 278, 22 Atl. Rep. 418.

In the case of Murphy v. Lincoln, supra, the bill charged the committing of several trespasses by the defendants by drawing wood and logs across the orator's land. The defendants claimed a right of way. The court found the issue of fact in favor of the orator, and held that a court of equity had jurisdiction to enjoin the commission of a series of trespasses, although the legal remedy be adequate for each single act if it stood alone. It is said by Judge Story in his work on Equity Jurisprudence, (volume 2, §§ 928, 929:) "If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts of equity were extremely reluctant to interpose at all, even in regard to cases of repeated trespasses; but now there is not the slightest hesitation if the acts done or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in the future. In short, it is now granted in all cases of timber, coals, ores, and quarries, where the party is a mere trespasser, or where he exceeds the limited right with which he is clothed, upon the ground that the acts are, or may be, an irreparable damage to the particular species of property." In Iron Co. v. Reymert, supra, it is said that mines, quarries, and timber are protected by injunction, upon the ground that Injuries to and defendations upon them are, or may cause, an irreparable damage, and also with a view to prevent a multiplicity of actions for damages, which might accrue from continuous violations of the rights of the owners; and that it is not necessary that the right, should be first established in an action at law. In Erhardt v. Boaro, supra, Mr. Justice Field says: "It is now a common practice in eases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title."

When it appears that the title is in dispute, the court may, in its discretion, issue a temporary injunction, and continue it in force for such time as may be necessary to enable the orator to establish his title in a court of law, and may make the injunction perpetual when the orator has thus established his title; or the court may proceed and determine which party has the better title; or it may dismiss the bill, and leave the orator to his legal remedy. Bacon v. Jones, 4 Mylne & C. 433; Duke of Beaufort v. Morris, 6 Hare, 340; Campbell v. Scott, 11 Rim. 31; Kerr, Inj. 209; Ingraham v. Bunnell, 5 Mete. (Mass.) 118; Rooney v. Soule, 45 Vt. 303; Wing v. Hall, 44 Vt. 118; Lyon v. McLaughlin, 32 Vt. 423; Hastings v. Perry, 20 Vt. 278; Barnes v. Dow, 59 Vt. 530, 10 Atl. Rep. 258; Barry v. Harris, 49 Vt. 392. In Bacon v. Jones, supra, Lord Cottenham says: "The jurisdiction of this court is founded upon legal right. The plaintiff comes into court on the assumption that he has the legal right, and the court grants its assistance on that ground. When a party applies for the aid of a court, the application for an injunction is made either during the progress of the suit or at the hearing; and in both cases, I apprehend,...