H. H. Hitt Lumber Co. v. Cullman Property Co.

• Citation: 66 So. 720,189 Ala. 13
• Decision Date: 11 June 1914
• Docket Number: 856
• Parties: H.H. HITT LUMBER CO. et al. v. CULLMAN PROPERTY CO.
• Court: Supreme Court of Alabama

66 So. 720

189 Ala. 13

H.H. HITT LUMBER CO. et al. v. CULLMAN PROPERTY CO.

No. 856

Supreme Court of Alabama

June 11, 1914

Rehearing Denied Nov. 7, 1914

Appeal from Chancery Court, Cullman County; W.H. Simpson, Judge.

Suit by the Cullman Property Company against the H.H. Hitt Lumber Company and others to enjoin trespasses upon land, and for discovery in aid thereof, and damages for past trespasses. From a decree overruling demurrer to the bill, respondents appeal. Reversed, rendered, and remanded.

Callahan & Harris, of Decatur, for appellants.

Brown &amp Griffith, of Cullman, for appellee.

MAYFIELD J.

The substance of the bill is thus stated by counsel who drafted it:

"The bill, as amended, is prosecuted by the Cullman Property Company, a corporation, and S. Roman, as trustee for Emanuel Lehman and Ignatius Pollak; said Roman joining in the suit and suing for the use and benefit of the Cullman Property Company, who is alleged to be the beneficial owner of the cause of action or causes of action on which this bill is predicated. The ultimate purpose of the bill is to restrain the respondent from committing depredations upon the property of the complainant, and to protect its property from being impoverished and denuded to such extent that it is rendered valueless to the complainant, and as incidental relief prays that complainant may be awarded damages for past trespasses and depredations committed by the respondent on the property from which, as is alleged in the bill, vast amounts of valuable timber have been taken by the respondents, and in aid of this relief discovery is sought."

The main equity upon which the bill is attempted to be grounded is to prevent repeated trespasses upon the land. The trespasses complained of consist of the cutting and removing of timber from the land for commercial purposes. The lands in question consist of many thousands of acres, badly scattered over three or four counties, and no attempt is made to fix the trespasses as upon any particular tract or tracts. This main equity of the bill is attempted to be strengthened by praying a discovery in aid of the suit, to the end of ascertaining the amount of damages which the complainant is entitled to recover. In order to obtain complete equity, the bill seeks to recover damages on account of similar trespasses extending over a period of several years before the filing of the bill. It seeks to recover damages as for trespasses committed long before the main complainant, the Cullman Property Company, ever acquired any interest in the lands, and long before the main defendant, the H.H. Hitt Lumber Company, ever had any existence. The bill contains general, vague, and uncertain allegations that the main complainant acquired, or succeeded to, the rights of the former owners of the land, which would authorize the complainant corporation to recover damages as for trespasses committed before it acquired the land. The bill also contains general, vague, and uncertain allegations that the defendant corporation is liable or responsible for the acts of other respondents, and of a former partnership composed of the same respondents, and which was changed from a partnership into the present corporation, the H.H. Hitt Lumber Company. Another equity attempted to be asserted in the bill is to prevent a multiplicity of suits, both as to trespasses already committed and as to those that will be committed in the future, which are sought to be prevented.

The respondents demurred to the bill for want of equity, for multifariousness, and for misjoinder of parties defendant and for that the averments of the bill upon which its equities were based--that is, to prevent repeated trespasses, and multiplicity of suits, and to compel discovery--were mere conclusions of the pleader, and that no facts were averred which warranted the conclusions.

Equity jurisdiction to prevent trespasses upon land has been long recognized. It grew out of the jurisdiction to prevent waste. For a long time privity of title was essential to the maintenance of a bill to prevent waste or repeated trespasses upon lands. This strict rule has later been relaxed, and such a bill may now be maintained against a mere trespasser, without any privity of title being shown. As Mr. High says, it is, however, yet sparingly exercised, and confined to cases in which, from the peculiar nature of the property, or from the frequent repetition of the trespass, the consequent injury cannot be compensated for, or remedied, in an action at law, and where such injury may properly be termed irreparable. This author says:

"The foundation of the jurisdiction rests in the probability of irreparable injury, the inadequacy of pecuniary compensation, and the prevention of a multiplicity of suits, and where facts are not shown to bring the case within these conditions the relief will be refused." High on Injunctions, § 697.

The injury resulting from the trespasses, in order to be a continuing one, justifying relief by injunction, must be of such a character that its recurrence is not dependent upon any act to be done by any person, but results from a continuing state or condition of things caused by the act or trespass itself. What was said by this court in the case of Deegan v. Neville, 127 Ala. 471, 29 So. 173, 85 Am.St.Rep. 137, is appropriate and applicable in this case:

"The second reason attempted to be invoked is that the injuries and trespasses are of a recurrent and continuous nature. No facts are alleged supporting this averment. It is a bald assertion of the pleader, and seems to be predicated upon repeated acts of trespass alleged to have been committed by the respondents. To make the injury or trespass a continuing one, it must be of such a character as that its recurrence is not dependent upon any act to be done by any person. Thus, where a person erects a dam by which another's land would be inundated and his timber periodically destroyed, though the act done was a single one, that of erecting the dam, the trespass would not be single. Every rise of the water occasioned by heavy rains would produce another injury, so that from the very nature of the injuries there would be constantly recurring grievances, and the jury would be unable to fix upon a time when the wrong may be said to be complete. Adverting to the allegation of repeated trespasses, it is only necessary to say, adopting the language of Justice Lumpkin, in Hatcher v. Hampton, 7 Ga. 49: 'It has never been supposed, that because one person chooses daily to pull down the fence of another, and turn his stock in his fields, that this would authorize the courts of chancery to restrain the intruder by injunction.' Ellsworth v. Hale, 33 Ark. 633. Applying that principle to this case, we cannot hold that the acts of trespass complained of, though oft-repeated, would authorize the writ of injunction in this case."

A fundamental doctrine, upon which the jurisdiction of equity rests, to prevent trespasses to land by injunction, is that there is and can be no adequate relief in a court of law. What was said by this court in the case of Kellar v. Bullington, 101 Ala. 270, 14 So. 467, is applicable to the averments of the bill in this case:

"There is no averment or proof of facts from which it can

be deduced that a virtual destruction of the estate, or injury thereto for which adequate redress cannot be obtained in an action at law, would follow the continued possession and quarrying of stone by the respondents until an action at law could be tried. In the absence of averment and proof to the contrary, it must be assumed the respondents are solvent and able to respond in damages for the alleged trespass. The bill seems to rest for its equity upon the mere conclusions of the pleader that a resort to equity is necessary to prevent irreparable injury in multiplicity of suits, rather than any statement of facts to that effect."

The rule was well stated by Chancellor Kent in the case of Jerome v. Ross, 7 Johns. Ch. (N.Y.) 315, 11 Am.Dec. 484, as follows:

"The objection to the injunction, in cases of private trespass, except under very special circumstances, is that it would be productive of public inconvenience, by drawing cases of ordinary trespass within the cognizance of equity, and by calling forth, upon all occasions, its power to punish by attachment, fine, and imprisonment for a further commission of trespass, instead of the more gentle and common-law remedy by action and the assessment of damages by a jury. In ordinary cases, this latter remedy has been found amply sufficient for the protection of property; and I do not think it advisable, upon any principle of justice or policy, to introduce the chancery remedy as its

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