Peck v. Ayers & Lord Tie Co.
| Decision Date | 06 May 1902 |
| Docket Number | 1,026. |
| Citation | 116 F. 273 |
| Parties | PECK et al. v. AYERS & LORD TIE CO. et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
R. W Butterfield and.J. H. England, for appellants.
Q. W Hawkins and John A. Pitts, for appellees.
Before LURTON, DAY, and SEVERENS, Circuit Judges.
The bill in this case was filed by the above-named appellants for two purposes, namely, to quiet their title to the land described, and for an injunction to restrain the defendants from cutting and removing the timber on the land; the timber as is alleged, constituting the substance of the value of the land. Either of these purposes constitutes a sufficient ground for equity jurisdiction if the existing facts make out the requisite conditions. The bill alleged title in the complainant, the claims of the defendants which create the cloud complained of, and repeated trespasses of the defendants in cutting and removing the timber, and prayed for the removal of the cloud, for an injunction, and for an accounting for timber already taken from the land. Upon the filing of the bill a preliminary injunction was awarded, restraining the defendants from cutting and removing the timber or entering upon the lands. The defendants interposed a demurrer to the bill, the principal grounds thereof being that the complainant had a complete remedy at law. Other grounds were assigned, but, as they consisted of affirmative defenses necessary to be established by the defendants, they need not be noticed, further than to say that they were not well taken. With respect to the defense that there was a complete remedy at law, it is clear that upon the facts alleged in the bill and confessed by the demurrer, the remedy at law was not adequate upon either aspect, whether the relief sought was to quiet title or prevent the destruction of the value of the property by repeated trespasses. It was stated in the bill that the complainants were in possession, and that the defendants were not. The demurrer was properly overruled. The defendants answered, setting up title in themselves in some of the land, and in strangers in respect to other portions. A replication was filed, and proofs were taken. At the hearing it was held and decreed that the defendants be 'enjoined and restrained from cutting and removing or selling the timber now standing, growing, lying, or being on the premises set forth in the bill of complaint in this cause as belonging to the complainants therein named, and from attempting to do so, and in any manner interfering with said premises or the timber thereon, or entering upon said premises, until their right to do so shall be established in an action of ejectment, or some other proper action in law or equity'; the premises intended being enumerated in the decree. And it was further decreed that the prayer of the bill that a certain grant and certain deeds upon which the defendants relied in respect to some of the lands should be removed because they clouded the title be denied. But it was provided that 'this decree is made without prejudice to the rights of the defendants, or any of them, to bring and prosecute any action or actions at law or in equity for the recovery of said premises.' From this decree both parties have appealed.
We are satisfied by the proofs that neither of the parties was in possession of the land in controversy at the time of the commencement of the suit, and upon this ground it is contended by the defendants that the bill will not lie because is now appears that, contrary to what had been assumed by the demurrer, the complainants were not in possession when the bill was filed, and might have had their remedy at law by ejectment, notwithstanding the defendants were not in possession, under the Tennessee statute, which provides (Shannon's Code, Sec. 4972) that if the premises are not occupied the action may be brought 'against any person claiming an interest therein, or exercising acts of ownership, at the commencement of the suit. ' By the sixteenth section of the judiciary act of 1789 (1 Stat. 82) it was enacted that suits in equity 'shall not be sustained in...
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...234 U.S. 369, 374, 34 S.Ct. 810, 58 L. Ed. 1356; Mississippi Mills v. Cohn, 150 U. S. 202, 14 S.Ct. 75, 37 L.Ed. 1052; Peck v. Ayers & Lord Tie Co. (C.C.A.) 116 F. 273; Barrett v. Twin City Power Co. (C.C.) 118 F. 861; Id. (C.C.A.) 126 F. 302, 305; Provisional Municipality v. Lehman (C.C.A.......
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