Moore v. Halliday

• Decision Date: 22 June 1903
• Citation: 72 P. 801,43 Or. 243
• Parties: MOORE v. HALLIDAY. [*]
• Court: Oregon Supreme Court

72 P. 801

43 Or. 243

MOORE v. HALLIDAY. ^[*]

Supreme Court of Oregon

June 22, 1903

Appeal from Circuit Court, Malheur County; M.D. Clifford, Judge.

Suit by I.H. Moore against T.W. Halliday, administrator of the estate of J.H. Chandler, deceased. From a decree for defendant plaintiff appeals. Affirmed.

Will R. King, for appellant.

John L Rand, for respondent.

MOORE C.J.

This is a suit to quiet the title to certain real property, and to enjoin a threatened continuance of trespasses thereon. It is alleged in the complaint, in substance that on July 5, 1902, plaintiff, having made a homestead entry upon 160 acres of land (particularly describing it) in Malheur county, Or., thereafter, and prior to September 26 1902, when this suit was begun, established his residence thereon, entered into full possession, and is now the owner in fee thereof, subject to the paramount title of the United States; that defendant, as the administrator of the estate of J.H. Chandler, deceased, unlawfully claims an interest therein, asserting that such estate is the owner in fee of said premises, but that defendant has no right thereto, nor any title or interest therein, nor is he in the actual possession thereof. For a second cause of suit, plaintiff, after alleging that he made a homestead filing upon said land, and is in the sole possession thereof, as hereinbefore stated, avers that, without his consent, defendant, at divers times, too numerous to mention, opened the inclosure surrounding said premises, cut and removed hay and grain therefrom, turned cattle and horses thereon, and, claiming the right at all times so to do, threatens to continue such acts, against plaintiff's protest; that his conduct in this respect has caused, and, unless restrained, will result in, the destruction of the crops and shrubbery, to the irreparable injury and damage of said land; that defendant is impecunious and unable to respond in damages; and that plaintiff has no plain, speedy, or adequate remedy at law. A demurrer to the complaint, interposed on the ground that the two causes of suit were improperly joined, and that the second cause did not state facts sufficient to warrant injunctive relief, having been sustained, and plaintiff declining to amend or further plead, the suit was dismissed, and he appeals.

It is contended by plaintiff's counsel that the causes of suit set forth in the complaint arose out of the same transaction, and were therefore properly joined, and that if the second cause failed to state facts sufficient to entitle their client to the relief prayed for, and was for that reason demurrable, only one cause was stated, and, this being so, the court erred in dismissing the suit.

Considering the second cause of suit, the question to be determined is whether a court of equity should enjoin a threatened commission of the acts complained of, upon the facts stated. The jurisdiction of a court of equity to restrain trespasses on real property is undoubtedly an outgrowth of its interference to prevent waste. At common law, waste, when threatened by a tenant in dower or by the curtesy, or guardian in chivalry, was prevented by a writ of prohibition issued by a court of chancery, which, if unavailing, was followed by an original writ, emanating from the same source and made returnable, usually, in the court of common pleas. Upon the appearance of the defendant, and after issue joined, he was tried, and, if found guilty, the plaintiff recovered single damages for the waste committed. Though the writ of prohibition at common law was limited to the class of tenants mentioned, it was afterwards extended to other persons by statute, in speaking of which, Lord Chief Justice Eyre, in Jefferson v. Bishop of Durham, 1 Bos. & Pul. 105, says: "That which these statutes gave by way of remedy was not so properly the introduction of a new law, as the extension of an old one to a new description of persons. The course of proceeding remained the same as before these statutes were made. The first act which introduced anything substantially new was that which gave a writ of waste or estrepement pending the suit. It follows, of course, that this was a judicial writ, and was to issue out of the courts of common law; but, except for the purpose of staying proceedings pending a suit, there is no intimation in any of our text-writers that any prohibition could issue from those courts." The method thus adopted to prevent the spoil or destruction of lands, houses, gardens, trees, or other corporeal hereditaments, by the tenant thereof, to the prejudice of the heir, or of him in reversion or remainder (2 Bl.Com. 281), proving cumbersome, equity intervened, and by injunction prevented the commission of waste; the jurisdiction being founded upon the necessity of preventing irremediable injury, and allowable only in cases where a privity of title existed between the parties. 1 High, Injunctions (3d Ed.) § 697; Bolster v. Catterlin, 10 Ind. 117; Wiggins v. Williams (Fla.) 18 So. 859, 30 L.R.A. 754. The commission of waste having been so successfully thwarted in these cases by the intervention of a court of equity, its jurisdiction was soon thereafter invoked to prevent injuries to real property by persons having no privity of title; the tort being denominated a "trespass." Mitchell v. Dors, 6 Ves.Jr. 147. The relief by injunction in such cases has been sparingly granted, and, when bestowed, is based upon the theory of irreparable injury, resulting from the peculiar character of the property affected thereby, from the frequency of the acts complained of, amounting to a continuing trespass, or from the insolvency of the tort feasor, so that an action at law for the recovery of damages would be inadequate, thereby justifying a resort to a court of equity. 2 Story, Eq.Jur. (13th Ed.) § 928; Smith v. Gardner, 12 Or. 221, 6 P. 771, 53 Am.Rep. 342; Mendenhall v. Harrisburg Water Co., 27 Or. 38, 39 P. 399; Garrett v. Bishop, 27 Or. 349, 41 P. 10; City of Council Bluffs v. Stewart, ...