Smith v. Roc
| Citation | 9 A. 551,59 Vt. 232 |
| Parties | RUTH R. SMITH v. DAVID ROCK, GEO. H. RENEAU, AND A. J. KNIGHT. [IN CHANCERY.] |
| Decision Date | 28 May 1887 |
| Court | United States State Supreme Court of Vermont |
BILL IN CHANCERY. Heard on the pleadings and a special master's report, with exceptions thereto, December Term 1885, Orange County, ROWELL, Chancellor. It was decreed that the exceptions be overruled; that the bill be dismissed as to defendant Rock; and that the other defendants pay to the oratrix the sum of $ 150 for the actual damages found by the master.
The bill alleged that the contract was not in writing, and this was not denied in the answers. The defendants made an application before the master to amend the answer, in effect that the oratrix had a complete and adequate remedy at law and that defendants had done, prior to the service of the injunction, substantially all that they ever intended to do on the premises of the oratrix. But it did not appear that the question of amendment was ever passed upon by the chancellor, or brought to his attention.
The master found: "That the value of the oratrix's said Ladd lot consisted largely and principally in the thrifty growing wood and timber thereon, and the cutting off of said wood and timber, as was done by defendant Knight and his men worked a permanent injury to the land, and was a commission of waste on said premises. " * * * "That the oratrix had no other wood lot than said Ladd lot, and that it was valuable to her on account of the thrifty timber growing thereon, and much more valuable to her with the trees standing than with them cut off; that it was more valuable to let the trees grow than to have them cut off."
Decree affirmed and cause remanded.
Roswell Furnham and Smith & Sloan, for the defendants.
The motion to dismiss for want of jurisdiction was not out of time. The question of jurisdiction can be raised at any stage of the proceedings. Pom. Eq. Juris. 130; Hipp v. Babin, 19 How. 271, 278; Graves v. Ins. Com. 2 Chranch, 419, 444; Towle v. Lawrenson's Ex. 5 Pet. 495; Dale v. Irwin, 2 How. 383; Currier v. Rosebrooks, 48 Vt. 34; Niles v. Howe, 57 Vt. 388. Courts of equity will not interfere in cases of ordinary trespass. REDFIELD, J., in Smith v. Pettengill, 15 Vt. 84; Story Eq. Juris. ss. 207, 819, 927.
We conclude, from the conflicting authorities upon the question, that forest trees kept for firewood and timber in this country are not included in the list given by Judge REDFIELD or by STORY. An examination of the cases shows us most of the cases are English cases, with the English idea of the value of timber, or else they depend upon the question of waste. Sarles v. Sarles, 3 Sand. Ch. 601.
Pom. Eq. Juris. 1357; Parker v. Winnipiseogee C. & W. Co. 2 Black, 545; Gauze v. Perkins, 3 Jones (N. C.) Eq. 177; Hatcher v. Hampton, 7 Ga. 49; Cornelius v. Post, 9 N.J.Eq. (1 Stock.) 196; Dunkart v. Rinehart, 87 N.C. 224.
John H. Watson, for the oratrix.
The contract was not reduced to writing. The receipt only rehearsed the trade; and the rule as to parol evidence does not apply. Bostwick v. R. R. Co. 45 N.Y. 712; Hill v. R. R. Co. 73 N.Y. 352; 72 N.Y. 90.
A court of equity has jurisdiction. Shrew v. Block, 4 N.J.Eq. 177; Jackson v. Brownson, 4 Johns. 227; Livingston v. Livingston, 6 Johns. Ch. 497; Kerlin v. West, 4 N.J.Eq. 449; Southmayd v. McLaughlin, 24 N.J.Eq. 181; Win Lake Co. v. Worst, 29 N.H. 447; Pom. Eq. Juris. ss. 237, 1356, 1357; Sarles v. Sarles, 3 Sand. Ch. 601; 113 U.S. 537; 1 High Inj. s. 724.
The jurisdictional question was waived, as it was not properly raised. Grandin v. Roy, 2 Paige, 509; Society v. Trustees, 23 Pick. 148.
In order to understand the questions presented, it is necessary to refer to the pleadings. The oratrix in her bill, after alleging her ownership of the thirty acres of land therein described, and her sale to the defendant Rock of the hemlock bark and timber on one acre of the same, and the transfer of the title Rock acquired to the defendant Reneau, and from Reneau to Knight, alleges that Knight was cutting the timber on four or five acres of said land, and was making preparations to remove the timber so cut and to be cut from said lot, and that his doing so would work irreparable injury to her; and prays for an injunction to prevent the defendants from felling any more timber on said lot, and from removing what they had cut, and for an accounting.
The bill as to the defendant Rock was dismissed with costs. The other defendants answered the bill, and claimed title to the timber and bark under the purchase made from Rock. They did not claim that the Court of Chancery had not jurisdiction of the parties, or of the subject-matter, or deny that the cutting and removal of the timber would be an irreparable injury to the oratrix if it should be found that it was her property. The case was referred to a master to find and report the facts, and upon the hearing before him a motion was made to dismiss the suit for the want of jurisdiction. That motion was so far disregarded by the master that he proceeded with the hearing and reported the facts found by him. The motion was not...
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