Sharp v. Learned

• Decision Date: 24 April 1939
• Docket Number: 33682
• Citation: 185 Miss. 872,188 So. 302
• Court: Mississippi Supreme Court
• Parties: SHARP et al. v. LEARNED

188 So. 302

185 Miss. 872

SHARP et al. v. LEARNED

No. 33682

Supreme Court of Mississippi, Division B

April 24, 1939

Suggestion Of Error Overruled May 22, 1939.

APPEAL from the chancery court of Adams county HON. R. W. CUTRER Chancellor.

Suit by A. B. Learned against R. B. Sharp and another, to enjoin defendants from prosecuting any suit in the courts of Louisiana against plaintiff for cutting timber. From an adverse decree, defendants appeal. Decree affirmed and cause remanded.

Affirmed and remanded.

Engle &amp Laub, of Natchez, for appellant R. B. Sharp.

It is the contention of the appellant that the establishment of title is a suit of local nature and that the proper place for the trial of such a case is in the county or parish where the land lies. Therefore, the threatened suit was not of a transitory nature but one of local nature and, quite naturally, the appellant, proceeding to protect himself in the matter of the cut timber, assumed that the parish in which the land lies was the proper place to establish title in order that he might then proceed to sue for the damage done them by the cutting of the trees on said land. In event that it is not established that the land in question is in Madison Parish, Louisiana, quite naturally the appellants' case goes out of court. Their case is based solely upon the proposition that this land is in Madison Parish, Louisiana. Being in Madison Parish, Louisiana, we assert that that court is the proper place to try title to the land.

The comparative convenience or inconvenience of the parties from granting or withholding the injunction sought should be considered and none should be granted if it would operate oppressively or inequitably, or contrary to the real justice of the case.

14 R C. L. 358, par. 60.

The disposition of immovable property, whether by deed, descent or otherwise, is exclusively subject to the government within whose jurisdiction it is situated.

Arndt v. Griggs, 134 U.S. 316, 33 L.Ed. 918; 14 R. C. L. 417, par. 119.

We say the Louisiana courts were the proper courts to which to resort for the trial of this local action. Proof of title had first to be made in the appellants before they could proceed to sue for any trespass to their timber.

32 C. J., page 77, par. 64, and page 94, par. 88; Standard Roller Bearing Co. v. Crucible Steel Co., 71 N. J. Eq. 61, 63 A. 456.

This injunction, if granted, would compel the appellants to litigate their Louisiana title in Adams County, Mississippi, putting the appellants under undue hardship when the land itself, as they claim and on which they rest their title, lies in Madison Parish, Louisiana, and unless they can so prove the appellants have no case for further litigation as to the cutting of the timber. If they can so prove that the land actually does lie in the State of Louisiana and the appellants' title is proved thereto, then most certainly they should have the right to litigate the question of cut timber at the place where the timber was cut, to-wit, Madison Parish, Louisiana.

Cole v. Cunningham, 133 U.S. 107, 33 L.Ed. 538.

There is no attempt to defeat any law or gain any advantage in the instant case but simply a proposed attempt to establish title to lands in a state by resorting to the courts of that state in which appellants assert their lands lie and in which they must prove their title; otherwise, they have no rights.

Snook v. Snetzer, 25 Ohio St. 516; Keyser v. Rice, 47 Md. 203; Burlington & M. R. R. Co. v. Thompson, 31 Kan. 180; Massie v. Watts, 10 U.S. 148.

Under the proposition that equity follows the law, we say that the law of Mississippi is that suit for cutting trees is a local action and should be brought in the county where the cutting took place.

Appellee's bill asserts that the conflicting claims to the land in controversy could be adjudicated and determined as between appellants and appellee only by establishing or having established by a court of competent jurisdiction the question of whether or not the particular lands in controversy were within the territorial limits of Mississippi at said point and place, and that such dispute and question could only be determined in a suit of original jurisdiction in the United States Supreme Court, and then only in a suit between the sovereign states of Mississippi and Louisiana. We cannot agree with that proposition. The boundaries of the two states need not be established in order for the ownership of the land in controversy to be established in either appellants or appellee.

Smoot Sand & Gravel Corp. v. Washington Airport, Inc., 283 U.S. 348, 75 L.Ed. 1109.

An action for trespass on land is not "transitory action."

Sharp v. Learned, 181 So. 142.

Here is a contested title to land claimed by the appellants in one state, i. e., Louisiana, claimed by the appellee in another state, i. e., Mississippi. Here there is no question of specific performance of a contract, enforcement of a trust or the doing of any act which from previous dealing is binding on the conscience of the parties, although the court had jurisdiction of the parties, so that these appellants having first instituted suit on the controversy between them, and having resorted to the courts of Louisiana in the parish where they claim their lands were situated under the decision of our Supreme Court as reaffirmed on the former appeal of this case, will not be interfered with by the appellee through process or injunction, and the attempt to amend the bill of complaint can in no wise change, or alter, the real controversy which really exists between the parties and which is again set up in the amended bill, that is that one party claims the land in Mississippi, the other in Louisiana--hence an actual bona fide controversy.

Sutton v. Archer, 93 Miss. 603, 46 So. 705; Sharp v. Learned, 181 So. 142.

To permit an injunction to stand under a statement of facts as outlined in this bill would be a manifestation of disrespect of the judicial machinery of an adjoining sister state where it is sought to have an adjudication of a real action made covering land claimed to lie in the State of Louisiana, the sister state.

181 So. 142; Sutton v. Archer, 93 Miss. 603, 46 So. 705.

We respectfully submit that this is not a case where there should be a restraint of prosecution of a suit in another case for the reason that no clear equity has been made out requiring the interposition of this court to prevent manifest wrong or injustice, but on the contrary these appellants have gone to the very forum to which they should have gone in order to establish their asserted rights in a real and not a transitory action.

Jones & Stockett and W. Roger Jones, all of Woodville, for appellant R. Mason Stricker.

The case attempted to be made presents one vital question, all other questions involved although integrated in that vital question, are dependent entirely thereon. The question is this: can one citizen of Mississippi enjoin another citizen of Mississippi from instituting and prosecuting in the courts of the State of Louisiana a suit to establish and protect his title to lands in Louisiana owned by him, unless the bill itself presents a case of clear equity, and one to prevent manifest wrong and injustice?

The decision of this court, on the first appeal (181 So. 142) has set at eternal rest two of the factors of the questions raised by this appeal. The first is that ordiarily a court of equity will not restrain the prosecution of a suit in another state unless a clear equity is made out requiring the interposition of the court to prevent manifest wrong or injustice, and the second is that an action for trespass on land is not transitory.

Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 151.

This is not a case in aid of any pending action to try title; it is not a bill to remove any supposed cloud, or to confirm any title; it is not to restrain waste pendente lite; it is not one charging insolvency of defendants, but it is solely based on an assertion of title and then, on the bare assertion, enjoining defendant, these appellants, from applying to the court which they contend has sole jurisdiction of the cause.

North Lbr. Co. v. Gary, 88 Miss. 644, 35 So. 2.

Much was said in the arguments in the court below about the demurrers admitting the facts as alleged and particularly admitting, by the nature of the demurrers, that the area is in Warren County. That position is without foundation. The demurrers do not admit any conclusion of law asserted by complainant; they do not admit any inference or deductions of fact although such inferences or deductions might be drawn from facts stated in the bill.

Griffith's Chancery Practice, sec. 286.

What fact is stated in the bill whereby this land can be located in Warren County? There is the mere conclusion of the pleader that by an alleged tax patent it is so located, but he gives no fact upon which that conclusion can be reached. He says so, and then by his own ipse dixit, regardless of court or opponent, or any one else, on his base and bold assertion sues and obtains injunctive relief.

It is manifest from this bill that the controversy is solely one over title to land, the appellee vaguely asserting that the land is in Mississippi, but refusing to ask the court of that state to quiet his title, while appellants not only say their land is in Louisiana but have actually entered the court of that state to protect their title.

The charges of fraud, oppression, desire to evade the laws of Mississippi, in this bill are figments of the vivid imagination of appellee, and since no fact evidencing such on the part of appellants are made in the bill, they constitute a deliberate insult to the court of a sister state.

Sutton v....