Kistler v. Weaver

• Decision Date: 11 May 1904
• Parties: KISTLER et al. v. WEAVER et al.
• Court: North Carolina Supreme Court

47 S.E. 478

135 N.C. 388

KISTLER et al.

v.WEAVER et al.

Supreme Court of North Carolina.

May 11, 1904.

injunction—removal of personal property —adequate remedy at law—statutes.

1. Acts 1885, p. 6(54, c. 401, provides that, in an application for an injunction to enjoin a trespass on land, it shall not be necessary to allege insolvency of the defendant, when the trespass is continuous in its nature, or is the cutting or destruction of timber or trees. Acts 1901, p. 900, c. 666, provides that when there is a bona fide contention as to the title to the land, or trees thereon, no order shall be entered permitting either party to cut the trees, except by consent, until the title shall be determined, and that if the claim of one of the parties is not asserted in good faith, and based on evidence establishing a prima facie title, then, on motion of the other party, if he shall satisfy the court of the bona fides of his claim, and produce evidence showing a prima facie title, he may be allowed by order to cut the trees on giving bond as required by law. Held, that neither of these acts has any application to an order requiring defendants to desist from removing lumber unless they first give bond to secure any damages plaintiffs may sustain by the removal.

2. Injunction will not lie where the plaintiffs have an adequate remedy at law.

3. Injunction will not lie to prevent the removal of personal property in the absence of allegation by the plaintiff that the defendants are insolvent.

4. Injunction will not lie when the title to personal property is the sole question involved.

Appeal from Superior Court, McDowell County; Shaw, Judge.

Action by Wilson Kistler and others against A. D. Weaver and others. From a decree for plaintiffs, defendants appeal. Reversed.

J. W. Pless and Zebulon Weaver, for appellants.

Avery & Ervin, for appellees.

WALKER, J. This action was brought to recover possession of a tract of land, and damages for a trespass committed thereon, in cutting timber, and removing from the land the cut timber and the lumber into which some of the timber had been sawed. Plaintiffs allege in their complaint that they are the owners of the land, and entitled to the possession thereof, and that the defendants are in the unlawful possession of the same, and are unlawfully and wrongfully cutting and removing timber therefrom, and also removing the lumber into which some of the timber has been sawed. There is no allegation of the insolvency of the defendants. Defendants, in their answer, denied the trespass, and also denied the title of plaintiffs to the land and timber and trees, and especially denied their right to an injunction against removing the lumber. Plaintiffs moved in the court below for an injunction re-straining the defendants from cutting or sawing any timber trees on the land, and further restraining them from removing any lumber sawed from any timber trees which had been cut on the land. The court granted the injunction, providing, however, that, if the defendants gave bond, payable to the plaintiffs, with good and sufficient sureties, in the sum of?600, conditioned to secure all such damages as the plaintiffs may recover in the action, they could remove any and all lumber sawed and manufactured from trees cut on the said premises, and, if said bond is filed, the injunction should not apply to the removal of the lumber. To so much of the order of the court as restrained them from removing the lumber without giving bond as set forth in the order, the defendants excepted and appealed.

A court of equity will not enjoin an ordinary trespass, such as entering upon land and working turpentine trees, or cutting and making staves thereon, unless irreparable injury is threatened; that Is, one for which there can be no sufficient recompense...