Schoonover v. Bright
| Decision Date | 01 October 1884 |
| Citation | 24 W.Va. 698 |
| Parties | SCHOONOVER v. BRIGHT. |
| Court | West Virginia Supreme Court |
Submitted Jun. 16, 1884.
1. An injunction will be dissolved on the hearing, if the answer fully, plainly and positively denies all the material allegations of the bill on which the injunction was founded and there is no proof to establish said allegations. (p 700.)
2 To warrant the interference of a court of equity to restrain a trespass, two conditions must co-exist: First, the plaintiff's title must be undisputed or established by legal adjudication; and, second, the injury complained of must be irreparable in its nature. (p. 701.)
3 It is not, in such case, sufficient that the bill contains mere general averments of irreparable mischief, but the facts constituting such mischief must be set forth. (p. 701.)
4 A case in which an injunction granted to restrain the cutting and removing of the timber from land claimed by the plaintiff was wholly dissolved.
The facts of the case are stated in the opinion of the Court.
P Lipscomb for appellant.
A B. Parsons for appellee.
Appeal from a decree of the circuit court of Tucker county, entered May 16, 1882, in a suit therein pending in which Granville T Schoonover was plaintiff and George W. Bright and others were defendants, awarded on the petition of the said Georg W. Bright.
The material allegations of the bill are, that the plaintiff and those under whom he claims title were, in the year 1844, and have been ever since, the owners and in the actual possession of a tract of land situate in Randolph and Tucker counties claiming the same under a deed calling for two hundred and twenty-five acres, but the boundaries of which described therein, in fact contain one thousand nine hundred and eighty-eight acres, and that he, the plaintiff, is now the absolute owner and in possession of eight hundred acres of said tract; that the defendant John Bright claims to have obtained from the State of West Virginia, in the year 1867, a grant for a tract of land, seventy-two acres of which laps on the plaintiff's land; that the defendant George W. Bright obtained from said John Bright a deed for that part of said grant which laps on plaintiff's land; and that, in 1881, the said George W. Bright and the defendant Thos. W. Bright went on the said seventy-two acres of land and commenced cutting and removing therefrom the poplar, ash and cucumber timber and rafting the same down Cheat river to market without any authority; " that the said Brights are now committing trespass and waste on said land by cutting and removing the valuable timber therefrom and thereby entailing on your orator irreparable injury, loss and damage," and the plaintiff " charges that he believes the said John Bright is colluding with his brother (Georg W. Bright) in committing said grievance, and it was the intention of said Brights to get a kind of color of title to said land which they hoped would ripen into a perfect title and thereby wrong your orator out of his said land." The plaintiff then avers " that he is the only lawful owner of said land and that he is immediately going to institute his action of ejectment against the said George W. Bright to eject him from the said land upon which he is holding and claiming title." The prayer is, that the defendants may be enjoined from further trespassing and committing waste upon said land and from removing any timber from the same theretofore cut thereon, & c. The bill was duly sworn to by the plaintiff and on January 17, 1882, the judge of said circuit court granted the plaintiff an injunction as prayed for in the bill.
The defendant, George W. Bright, the appellant here, answered the bill alleging that he has been in the actual possession of the tract of land on which he was cutting and removing the timber referred to in the plaintiff's bill for more than ten years before this suit was commenced, claiming the same by title denived from the State; and denying that the plaintiff has any title or right to the said land. He denies that he has trespassed or committed any waste on the land of the plaintiff or cut or removed any timber therefrom, but that all the timber cut and removed was from his own land. The answer fully denies every...
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