United States v. Guglard

• Citation: 79 F. 21
• Decision Date: 01 February 1897
• Docket Number: 689.
• Parties: UNITED STATES v. GUGLARD et al.
• Court: U.S. District Court — Southern District of California

79 F. 21

UNITED STATES v. GUGLARD et al.

No. 689.

United States Circuit Court, S.D. California.

February 1, 1897

George J. Denis, U.S. Atty.

Walter F. Haas, S. O. Houghton, and Chas. D. Houghton, for defendants.

WELLBORN District Judge.

The bill alleges that complainant is, and since the 30th day of May, 1848, has been, the owner of certain lands therein described, and that said lands are not mineral; that there has been growing on said lands a large quantity of timber trees, and wood; that on the 1st day of October, 1893, and at other dates and times between said date and the filing of the bill, the defendant Fidella Guglard, without license or authority therefor, wantonly and unlawfully cut and removed and is still wantonly and unlawfully cutting and removing, a large part of the timber, trees, and wood growing on said lands; that the exact amount of trees, timber, and wood so cut and removed is unknown to complainant. The bill further alleges that the defendant Anson L. Hamilton, and other parties to the complainant unknown, have purchased and received from said defendant Fidella Guglard said timber trees, and wood so cut and removed from said lands; that said Hamilton has sold and disposed of to other parties, to the complainant unknown, the timber, trees, and wood so purchased and received by him as aforesaid, and realized therefrom large sums of money, the exact amount of which is to complainant unknown; that prior to the filing of the bill complainant made written demand upon said defendant Hamilton for an accounting of the amount of timber, trees, and wood purchased and received by him, as aforesaid, and also the value thereof, at the times and places when and where the same were so received by him, and also the sums of money for which the same were sold by him, and the sums of money received by him from said sales, and the profits realized thereon, and demanded that said defendant account to complainant for the balance due from said defendant to the United States; but to so account, or at all, said defendant Hamilton has neglected and refused, and does still neglect and refuse. The bill further alleges that the defendant Fidella Guglard 'has threatened, is threatening, and intends to, and, unless restrained by this honorable court, will, wrongfully and unlawfully cut and chop down all of the timber, trees, and wood growing and being on said section twenty-three, and will remove the same, and cause the same to be removed, from said section twenty-three, to the great and irreparable injury of this complainant; and said defendant Fidella Guglard has also threatened, and is threatening, and intends to, and, unless restrained by this honorable court, will, wrongfully and unlawfully cut and chop down all of the timber, trees, and wood growing and being on' said lands, 'and will remove the said trees, timber, and wood, and cause the same to be removed, to the great and irreparable injury of this complainant. ' The prayer of the bill is for an injunction against the defendants, restraining the further cutting or removal of wood on said lands, and for an accounting from each of said defendants for the timber, trees, and wood received by by them respectively. The defendant Hamilton demurs to the bill for want of equity, for multifariousness, and for lack of necessary parties.

The last named ground of the demurrer is not urged in defendant's brief, and requires now no further notice than the statement that it is untenable. The other grounds will be examined in the order in which they are above stated.

1. Is the case made by the bill within the jurisdiction of a court of equity? From the brief of complainant I extract the following:

'The theory of complainant's bill of complaint is that the bill shows that complainant is entitled to the relief of an injunction against the defendant Guglard; that this relief of an injunction against Guglard is the primary relief sought by the bill, and gives a court of equity jurisdiction of the suit; that, where a court of equity has thus acquired jurisdiction of a suit it will grant whatever other relief is proper, even though such relief is legal in its kind, and could have been obtained by an action at law; that this incidental relief is given to prevent a multiplicity of suits, a court of equity abhorring multiplicity; that while a court of equity, under the statutes now in force, will not take jurisdiction of a suit for discovery, where discovery is the only relief sought, and while the same may possibly be true of an accounting, where the subject-matter of the account is not uncertain, and does not arise out of a contract, express or implied, and where the items of the account are all on one side, still, where the complainant shows himself entitled primarily to an injunction, or to some other equitable relief, the complainant is entitled, in a court of equity, both to an accounting and to a discovery, as an incident to the primary relief to which he shows himself to be entitled; that for the foregoing reasons the complainant is entitled to an accounting and to a discovery as against the defendant Guglard, as well as the primary relief of an injunction against the defendant Guglard; that the court, as a court of equity, having acquired jurisdiction of the suit by reason of the fact that the bill shows the complainant to be entitled to the primary relief of an injunction against the defendant Guglard, the defendant Hamilton is a proper party defendant, because his being a party is necessary to prevent a multiplicity of suits; that, being a proper party defendant, the court may grant any proper relief against Hamilton, even though such relief is legal in its kind; and that for this reason complainant is entitled to an accounting and to a discovery from said defendant Hamilton, as well as from the defendant Guglard.'

The demurring defendant urges that the bill does not state a case for equitable relief, for the reason that the mere cutting of growing trees is not such trespass as a court of equity will enjoin. In this I cannot concur. Any injury to the inheritance or substance of the estate is irreparable. Growing trees are a part of the land whereon they grow, and their destruction is an injury to the substance of...