Heaney v. Butte & M. Commercial Co.

• Decision Date: 20 July 1891
• Citation: 27 P. 379,10 Mont. 590
• Parties: HEANEY et al. v. BUTTE & MONTANA COMMERCIAL CO.
• Court: Montana Supreme Court

27 P. 379

10 Mont. 590

HEANEY et al. v. BUTTE & MONTANA COMMERCIAL CO.

Supreme Court of Montana

July 20, 1891

Appeal from district court, Cascade county; CHARLES H. BENTON Judge.

Action by John Heaney and another against the Butte & Montana Commercial Company for damages and an injunction. A preliminary injunction was granted. Defendant appeals. Reversed.

The action is for damages and injunction. The wrong complained of is that defendant entered upon the land of plaintiffs trespassed upon the same, and cut down the trees upon the land. An injunction was issued upon the complaint. That pleading sets forth the following facts material to this inquiry: The plaintiffs are the owners, and at the time of the commission of the alleged wrongs were in the possession of a limestone mining claim, describing the same. The claim was discovered and located December 18, 1890. That it is chiefly valuable for the deposits of limestone thereon, and that the plaintiffs intend presently to mine the same, and extract the limestone, and to erect kilns thereon to burn the limestone, and prepare it for market. That to do so large quantities of fuel will be required, and a large amount of timber and wood will be used in mining the claim and burning the limestone. That before the wrongs complained of there were growing upon said claim about 4,000 trees of the proper size, character, quality, and kind for fuel and use in such business, and were necessary and needful to the plaintiffs in said business. That it was and is the desire and intention of plaintiffs to use said trees for said business. That the claim is remote from a railroad, and there is little timber near by; and to obtain timber or wood for the purposes aforesaid, from lands other than said claim, would necessitate great and excessive expense and outlay, and practically prevent the plaintiffs from engaging in or carrying on said business, or cause the same to result in failure or loss to plaintiffs, and that, owing to the location and situation of said claim, it is difficult to have conveyed or brought thereon any considerable amount or quantity of timber or wood or material for fuel. Then follow allegations that defendant trespassed upon said claim, and cut down about 3,500 of said trees, to the damage of plaintiffs in $1,500. That defendant threatens to continue said acts, to remove the trees cut, and to fell the remaining trees, and to deprive plaintiffs of the same. That plaintiffs believe that defendant will fell and remove all said trees unless restrained by the court. That, if the trees are so removed, the same cannot be returned to said claim, and will be forever lost to plaintiffs. That plaintiffs will suffer great and irreparable injury, and are without a complete and speedy remedy at law. A perpetual injunction is prayed, and also an interlocutory order restraining defendant pendente lite. Upon this complaint an injunction issued, restraining the defendant as prayed for, until the further order of the court. Defendant moved for the dissolution of the injunction, on the ground, among others, that the facts set forth in the complaint do not justify the issuance of the injunction, as plaintiffs have their remedy at law. The motion was denied. Defendant appeals from the order denying its motion, and also from the order allowing the issuance of the writ.

Thomas E. Brady, for appellant.

Cooper & Pigott, for respondents.

DE WITT, J., (after stating the facts as above.)

A trespass, as such, is not subject to the control of a court of equity by injunction. Stevens v. Beekman, 1 Johns Ch. 317; Livingston v. Livingston, 6 Johns. Ch. 497; Jerome v. Ross, 7 Johns. Ch. 315; Shipley v. Ritter, 7 Md. 408; Cowles v. Shaw, 2 Iowa, 499; Kerlin v. West, 4 N. J. Eq. 449; Bethune v Wilkins, 8 Ga. 118; Citizens' Coach Co. v. Camden Horse R. Co., 29 N. J. Eq. 299; Western, M. & M. Co. v. Virginia C. C. Co., 10 W.Va. 296; McMillan v. Ferrell, 7 W. Va. 223. But an injunction may issue to prevent a trespass in "cases of great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed." Jerome v. Ross, supra. In this case is an expansive review of the decisions by Chancellor KENT, and a clear statement of the principles governing the invocation of the writ of injunction against trespass. See, also, to the same effect, the cases last cited above, and Davis v. Reed, 14 Md. 152; Green v. Keen, 4 Md. 98; Weigel v. Walsh, 45 Mo. 560; Anderson v. Harvey's Heirs, 10 Grat. 398. That equity may restrain trespass, the injury must appear to be irreparable, and that the plaintiff has no adequate remedy at law. In the case at bar, the plaintiffs have a remedy in an action at law. Is that remedy adequate? Is there anything to show that it is not? An important element in demonstrating that the remedy at law is inadequate is a showing...