Stephenson v. Burdett

• Decision Date: 25 October 1904
• Citation: 56 W.Va. 109
• Court: West Virginia Supreme Court
• Parties: Stephenson & Coon v. Burdett, et ah

56 W.Va. 109

Stephenson & Coon

v.Burdett, et ah

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1904.

Decided October 25, 1904.

1. Pleading.

Aside from the distinction as to the interest of the plaintiff in the subject matter of the controversy between the defendants, a bill in the nature of a bill of interpleader and a bill of interpleader are governed by the same general principles. (p. 118).

2. Vested Interest Interpleader Equitable Title.

The relief sought by a plaintiff having such interest, and praying an interpleader, must be a vested equitable interest, for the protection of which there is necessity for the settlement of the contention of the defendants, and not a mere anticipated interest or benefit which may come to him as the result of the desired adjudication between the defendants. The plaintiff cannot require them to litigate with each other for the purpose of determining whether he has an interest, but only for the purpose of enabling him to perfect his equitable title. (p. 118).

3. Interpleader Trespasser.

A bill in the nature of a bill of interpleader cannot be maintained if it discloses that the plaintiff, in the event of the establishment of the claim of one of the defendants, would stand as to him in the attitude of a trespasser. (p. 121).

4. Bill Interpleader Equitable Title.

Such a bill cannot be maintained if it discloses that the plaintiff has contracted or incurred a personal obligation or liability to one or both of the defendants, respecting the subject matter of their contention, independent of the title or the right to possession. (p. 121).

5. Hostile Title Adverse Possession Interpleader.

S. & C. purchased the timber on a certain tract of land, owned by certain persons. B. & J. purchased the timber on an adjoining tract, owned by other persons and held by them under a title hostile and adverse to that of the owners of said first mentioned tract. The line between the two tracts being uncertain as 1o location and in dispute between the purchasers of the timber as well as between the owners of the land, S. & C. brought a suit in equity to require the land owners to interplead therein, to the end that the location of the line might be ascertained and an adjudication, both as to the owners of the land and the other claimants of the timber in dispute, might be had, respecting their title to said timber. Held, that the bill does not present a proper case for an interpleader. (p. 122).

6. Adverse Possession Purchaser Equitable Title.

In such case, declarations and conduct, on the part of the purchasers of the timber on one side of such disputed line, in the nature of admissions of, and acquiescence in, the location contended for by the purchasers on the other side, are only matters of evidence of location, bearing upon the question of title to the timber, and will not alone sustain an injunction to prevent the parties from taking timber beyond the location claimed by the other purchasers. (p. 121).

7. Damages Injun ction Insolv ency.

For the wrong and injury of the taking of the timber of another the law provides adequate remedies, and the injury is not irreparable, and injunction does not lie to restrain such act, unless some further fact be shown in connection therewith, such as the insolvency of the wrongdoer (p. 122).

Appeal from Circuit Court, Kanawha County. Bill by Stephenson & Coon against J. F. Burdett and others. Decree for plaintiff, and certain defendants appeal.

Reversed.

J. W. Kennedy, for appellant. Linn, Byrne & Cato, for appellees.

poffenbarger, president i

The plaintiffs in this cause, claiming to be the owners, by purchase, of the timber on certain lands, which they have been cutting and sawing into lumber, are endeavoring to enjoin other persons, who are the owners, by purchase, of timber on adjoining lands, from cutting and taking certain timber, as to the ownership of which there is controversy between them, the right to it depending on the location of the division line between the tracts of land on which the timber purchased by them, respectively, stands. Neither of the contending parties owns any part of the land on which the timber purchased by them is growing. The injunction, therefore, is not intended to be the ordinary restraint of trespass upon land, working irreparable injury, and there is no allegation of insolvency against the defendants; but it is insisted that the jurisdiction may be sus- tained upon the theory of a right to have an interpleader for the settlement of all conflicting claims among the owners of the land and purchasers of the timber.

Stephenson and Coon, the plaintiffs, purchasers of timber from The Williams Coal Company, The Cabin Creek-Kanawha Coal Company and Thomas L. Broun, co-owners of part of the land, have made these land owners parties to their bill. They have also made J. F. Burdett, George L. Burdett and J. A. Johnson, purchasers of timber from the Williams Coal Company, the Cabin Creek-Kanawha Coal Company, W. Mollohan, J. P. Hale, S. Chapman and the devisees of A. W. Cole, deceased, as well as the last mentioned land owners, defendants to the bill. The relief specifically prayed for is against all the defendants. It is that the Burdetts and Johnson be enjoined from taking or interfering with the timber in controversy and be compelled to account to the plaintiffs for the timber which they had taken from the land before the institution of the suit, or might take before service of process upon them; and that the land owners be required to interplead and establish or relinquish their claims and take the fund paid into court in satisfaction for the timber which the plaintiffs claim the right to take from the land. It is upon this last clause of the prayer that the plaintiffs seem to rest their contention for equity jurisdiction. The controversy between the land owners is a complicated one of long standing. The vendors of the plaintiffs are the only land owners who have answered, and they express their willingness to have the disputed line determined and fixed by the court but do not ask that it be done. From these answers, the whole history of the title to the land and the controversies between the claimants thereto appear. Originally, these lands were a part of a tract of 29, 000 acres owned by Augustus Pack and William O'Connor, which they had agreed in February, 1819, to divide. Afterwards, along in the 60's, a coal company instituted a suit in the United States Circuit Court for a division of the tract in accordance with the agreement and a subdivision of the O'Connor moiety among certain vendees of O'Connor and Mary W. Byrne, his sole heir. A survey was ordered and the decree of partition made by which 14, 500 acres, one-half of the large tract, was divided among the vendees and the heir of O'Connor. The special commissioner appointed to make conveyances in accord- ance with the partition omitted a triangular tract of 1, 320 acres, but afterwards made a supplemental deed conveying it to Mary W. Byrne. This land was afterwards conveyed by Mrs. Byrne and her husband to Cole and Chapman in 1873. It seems that the timber on this tract of land is the timber purchased by the Burdetts and Johnson and that its west line is the one in dispute. Bordering upon this line is a 5, 000 acre tract, part of the original survey, on which is part of the timber purchased by Stephenson and Coon. It seems that the partition, as between Pack on the one side and the O'Connor claimants on the other, was never confirmed, because of defect of service of the summons on Pack. This led to two ejectment suits in the United States Court, one by John Byrne and wife against Pack, and the other by Henry A. Oakley and others against Pack. In: 1881, the Williams Coal Company instituted another ejectment suit against Monroe Eskins and others, involving some or all of these lands. This last suit is still pending in the circuit court of Kanawha county, although there seems to have been one or more attempted trials of it. The facts substantially appear from the bill, but this statement is made from the answers for convenience, as the defendants have stated them more in detail. Whether the line here sought to be ascertained is in question in that action does not clearly appear, but it seems to be. The owners of the 5, 000 acre tract of land, affected by this disputed line, the location of which depends upon, or is affected by, numerous surveys made in the partition suit and the ejectment suits, desiring to have the timber cut and marketed, entered into the agreement with Stephenson and Coon, which provides that the timber may be cut and removed and the proceeds paid into bank to be held subject to the decision as to the title in said last mentioned ejectment suit. The sale to the Burdetts and Johnson is a similar contract signed by all the owners of the other tract, some of whom claim interests in both tracts, and the money arising from this sale also is to be paid into the hands of Geo. E. Price and W. Mollohan, "to await the result of the said litigation about the title to said land."

As already stated, the vendors of the plaintiffs are the only land owners who have appeared in this suit, and they do not ask that the dispute as to the line be determined here. They only express their willingness to have it settled here and set out their contentions as to the location of the line. None of the other land owners have so expressed themselves. This bill prays that all of them be required to interplead in this suit and submit to the jurisdiction of the circuit court in this case their controversy as to the location of that line, to the end that the plaintiffs may know what timber they are entitled to take under their contract. They supplement this alleged ground of equity jurisdiction by allegations showing large expenditures of money by way of preparation for the work of cutting and removing the timber purchased by them. They say they have spent thousands...