Miller v. Wills

• Citation: 28 S.E. 337,95 Va. 337
• Parties: MILLER v. WILLS et al.
• Decision Date: 18 November 1897
• Court: Supreme Court of Virginia

28 S.E. 337

95 Va. 337

MILLER

v.WILLS et al.

Supreme Court of Appeals of Virginia.

Nov. 18, 1897.

Injunction—Sufficiency of Bill —Equity —Submission of Issues to Jury—When Chancellor should Abide by the Verdict — Judgment — Res Judicata.

1. A bill for an injunction to restrain a trespass set out a prima facie case of title in complainant to the land in question, and alleged quiet and undisturbed possession until about three years before, when defendants, citizens of Tennessee, came upon the land with force, and threw down complainant's fences, drove their cattle and sheep upon the grazing and meadow lands, and destroyed hay, and that from that time on they had greatly injured him in the enjoyment of his property, and that they had again begun to repeat their acts of trespass, and were committing great depredation and waste on the land. Held sufficient.

2. Where a court of equity has, in a proper case, in which the evidence relating to a particular fact in dispute is contradictory, directed an issue to be tried by a jury, the chancellor should abide by the verdict, unless there is good cause for a contrary course.

3. In an action to enjoin a trespass on land, in which the question was whether the land was in Virginia or Tennessee, and that depended on the location of the boundary line between said states, the court correctly directed such issues for a jury; and the evidence as to the location of such line was conflicting, but greatly preponderated in favor of the verdict. Held, that the court should have abided by such verdict, and decreed in accordance with the facts as found by the jury.

4. An action between citizens of Virginia and Tennessee, in which the sole issue, so far as the doctrine of res judicata could apply, was the location "upon the ground" of the compromise boundary line of 1802 between said states, was not barred by a judgment in a prior action between said states, in which the sole issue was asto the validity of said compromise line under the compact of 1803.

Appeal from circuit court, Washington county.

Bill by one Miller against one Wills and others for an injunction. From a judgment dissolving an injunction theretofore awarded, and dismissing the bill, complainant appeals. Reversed.

White & Penn, for appellant

Fulkerson, Page & Hurt, for appellees.

RIELY, J. It was earnestly insisted on the part of the appellees that a court of equity was without jurisdiction to hear and determine this cause. In this view we cannot concur.

It is very true that a court of equity will not, as a general rule, Interpose in the case of a mere naked trespass. There must be something more, to call forth its interference. But where the act done or threatened to be done would be destructive of the substance of the estate, or if repeated acts of wrong are done or threatened to be done, or the injury is or would be irreparable, —whenever, indeed, the remedy at law is or would be inadequate, —a court of equity will put forth its restraining hand, and enjoin the perpetration of the wrong, and prevent the injury. 3 Pom. Eq. Jur. § 1357; 1 High, Inj. (3d Ed.) §§ 697, 702; 2 Story, Eq. Jur. § 928; Livingston v. Livingston, 6 Johns. Ch. 497; Switzer v. McCulloch, 76 Va. 777; and Rakes v. Manufacturing Co. (Va.) 22 S. E. 498.

It has accordingly been held, upon the ground of the inadequacy of the remedy at law, that an injunction will lie in the case of a trespass, where the trespasser is pecuniarily irresponsible. 1 High, Inj. § 356; Musselman v. Marquis, 1 Bush, 463; Spear v. Cutter, 5 Barb. 486; Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581; Webb v. Harp, 38 Ga. 641; Hicks v. Compton, 18 Cal. 206; and Morgan v. Palmer, 48 N. H. 338. While mere insolvency would not generally be decisive of the right to grant an injunction, it constitutes in particular cases an important element in determining whether the court, In the exercise of a sound discretion, should award it; for, the trespasser being insolvent, the legal remedy, though theoretically perfect, would be practically fruitless. And for a similar reason the nonresidence of the trespasser, which is the case with the appellees here, is justly entitled to much weight in determining the propriety of awarding the injunction; for it would be unjust that a court of equity should turn from its doors a citizen of the state, who has been subjected to aggravated and repeated trespasses, and leave him to seek redress through the precarious remedy of a suit at law in a foreign jurisdiction. See Green v. Campbell, 55 N. C. 446, and Richardson v. Williams, 56 N. C. 116.

The bill in the case at bar sets out a prima facie case of title in the complainant to the land upon which the acts of trespass of which complaint was made were committed, and alleges that the complainant had been in the quiet and undisturbed possession of the land until about three years before, when the defendants, who were citizens of the state of Tennessee, had come upon the land with force and arms, in order to overcome any resistance, and thrown down his fences, driven their cattle and sheep in large numbers in and upon the grazing and meadow lands, and destroyed his stacks of hay; that from that time on they had greatly annoyed and injured him in the use and enjoyment of his property; and that they had again begun to repeat their acts of trespass, by turning their stock into his meadows and destroying his hay, and were committing great depredation and waste upon the land, by cutting and deadening timber, and doing other unlawful acts. The bill, according to settled principles of equity and numerous precedents, presented a proper case for injunction.

And, where a court of equity has properly acquired jurisdiction, it will, in order to prevent a multiplicity of suits, go on to do complete justice, though in doing so it has to try title or settle boundaries, and administer remedies which rightly pertain to courts of law. 1 Pom. Eq. Jur. § 181; Anderson v. Harvey's Heirs, 10 Grat. 386; McArthur v. Clark, 13 Grat. 683; Bettman v. Harness (W. Va.) 26 S. E. 271; Miller v. Railroad Co., 83 Ala. 274, 4 South. 842; and De Veney v. Gallagher, 20 N. J. Eq. 33.

The court awarded the injunction, as prayed for, on April 26, 1892. The answer of the defendants, which was filed at the October term, 1893, of the court, called In question the title of the complainant, and claimed that the lands upon which he charged that they had so trespassed lay, not within the commonwealth of Virginia, from which he derived his title, but wholly within the state of Tennessee. Upon the issue thus raised by the answer a great mass of testimony was taken by the respective parties. Owing to the doubt and uncertainty produced by the conflicting testimony as to the location of the boundary line between the states of Virginia and Tennessee, the court directed the following issues to be tried by a jury:

"First. Does the compromise line of 1802 between the states of Virginia and Tennessee, as located and established by General Joseph Martin, Creed Taylor, and Peter Johnson, commissioners on the part of Virginia, and Moses Fish, General John Sevier, and General George Rutledge, commissioners on the part of Tennessee, lie south or north of the. land in controversy?

"Second. At what point did It actually begin, and in what direction was it actually run and located until It passed west of the land now claimed by complainant, and in controversy in this cause?"

The jury, who were Impaneled on the law side of the court, at Its next term, to try

[28 S.E. 839]

these issues, after hearing the evidence and arguments of counsel, rendered the following

verdict:

"(1) We, the jury, find and decide that the compromise line of 1802-3 runs south of the land in controversy.

"(2) The jury further find that the point where that line began is on the summit of Pond Mountain, and runs due west beyond the land in controversy."

The defendants, upon the rendition of the verdict, moved the court to set it aside and award them a new trial. The court, at its next term, being of opinion that the verdict was against the weight of the evidence, and that the top of Pond Mountain is not the summit of White Top Mountain, where the compromise line of 1802-3 begins, and that the line runs north, instead of south, of the land in controversy, set aside the verdict; and being further of opinion that the land lies wholly within the boundaries of the state of Tennessee, and beyond the jurisdiction of the court, it dissolved the injunction theretofore awarded the complainant, and dismissed the bill.

The boundary line between the states of Virginia and North Carolina, as prescribed by their chartered rights, begins at Currituck Inlet, and runs a due west course, in latitude 36 deg. 30 min. N. This line had been partly located by commissioners representing the two states, when, in 1779, Thomas Walker and Daniel Smith were appointed on the part of Virginia, and Richard Henderson and others on the part of North Carolina, to extend and mark the boundary line between these states. They were directed to begin where Joshua Fry and Peter Jefferson, commissioners of Virginia, and Daniel Weldon and William Churton, commissioners of North Carolina, who had run a part of the boundary, had ended their work, and if that place was found to be truly in the latitude of 36 deg. 30 min. N., then to run from thence due west to the Tennessee river, but, if it were found to be not truly in that latitude, then to run due north or south, as the case might be, into that latitude, and thence due west to the Tennessee river. The commissioners, being unable to find the place where the previous commissioners had ended their line on Steep Rock creek, owing, as they supposed, to so much of the timber thereabout being dead, "proceeded to observation, " in order to fix upon the spot on Steep Rock creek where they should begin. Upon taking observation, they ascertained that they were 1 mile and 201 1/2 poles north of the proper...