Leatherbury v. McInnis

• Decision Date: 05 March 1905
• Citation: 37 So. 1018,85 Miss. 160
• Court: Mississippi Supreme Court
• Parties: GEORGE S. LEATHERBURY, JR., ET AL., v. MURDOCK MCINNIS

37 So. 1018

85 Miss. 160

GEORGE S. LEATHERBURY, JR., ET AL., v. MURDOCK MCINNIS

Supreme Court of Mississippi

March 5, 1905

November 1904

FROM the chancery court of Greene county, HON. STONE DEAVOURS Chancellor.

The appellee, Murdock McInnis, was complainant, and the appellants, George S. Leatherbury, Jr., et al., were defendants in the court below.

The bill alleged that complainant was the owner of an undivided half interest in the land described in the bill aggregating one thousand and forty acres, which was only valuable for the pine timber on it, and defendants had entered upon a portion of it, and were boxing the trees for turpentine, and that the boxing of the trees was an irreparable injury to the land and prayed for an injunction restraining defendants from boxing the timber for turpentine. Defendants answered the bill, denying the material allegations thereof, and made a motion to dissolve the injunction which had been granted. The motion was heard on bill, answer, and affidavits. The affidavits were in large part the opinions of the parties making them, as to the effect of boxing the trees for turpentine purposes, one witness stating that he had heard one of the defendants say they in-box all the land. The court overruled the motion to dissolve the injunction.

Decree reversed and cause remanded.

Ford &amp White, for appellants.

Here is a case where the defendants to an injunction bill, who confessedly own an undivided one-half interest in the lands who are not alleged to be insolvent, but affirmatively appear to be worth ten times the entire value of the whole tract of land, and who are in possession claiming title to the whole, who are absolutely, by operation of an injunction writ, in advance of any trial of title, lifted out of possession even of the half interest they own. We insist that the case viewed in its weakest light for the appellants falls as clearly as it is possible for a case to fall within the rule announced by this honorable court in the recent case of North Lumber Co. v. Gary, 83 Miss. 640 (s.c., 36 South. Rep., 2). It is a bill asserting ownership of an undivided one-half interest only, that does not seek to adjust or settle equities, seeking to perpetually restrain the co-tenant from using any part of the common property.

But conceding that complainant is the owner of an undivided one-half interest in the lands--which, however, the court is not warranted by this record in doing, and we insist the action of the lower court in maintaining this injunction is more erroneous than before--the court will observe that the bill describes over one thousand acres of land, all of which is averred to be pine timbered lands; and that the defendants, as appears by the answer, had boxed but one hundred and twenty acres of the common property, viewing it in the light of a tenancy in common, which is the greatest interest appellee can possibly have. There is no pretense that the particular one hundred and twenty acres boxed contained more than an average quantity of timber, or anything that gave that small portion an exceptional value, so as to render it impossible, in the adjustment of equities, to set it apart to defendants in a partition. But the position of appellee in the court below, and the learned chancellor in passing on the motion responded directly to the remarkable proposition, that one tenant in common could not use any part of the common estate or property for an exclusive or personal use, and that equity would restrain any use that was not a joint use and for the equal benefit of all the owners. We insist that this is not the law, and that the true rule is that one tenant in common may make any use he pleases of a part of the common property, provided he does not use in excess of his pro rata share of the common property. 1 High on Injunctions, sec. 693; Mott v. Underwood, 149 N.Y. 463 (s.c., 51 Am. St. Rep., 711).

C. H. Wood, for appellee.

Appellants rely upon the case of North Lumber Co. v. Gary, 83 Miss. 640 (s.c., 36 South. Rep., 2), to support their contention. This case is not analogous to the one before the court. In that case the party claimed the whole ownership of the land in dispute, while here it is proven that the defendants have only an undivided half interest in the lands. The trespass committed in the case cited was months before the suit was begun, and it was a very grave question whether the North Lumber Co. or Gary...