Watson v. Ferrell
| Decision Date | 10 December 1890 |
| Citation | 12 S.E. 724,34 W.Va. 406 |
| Parties | WATSON v. FERRELL et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A bill in equity, which alleges that the plaintiff is the owner of a tract of land, and exhibits his title papers; that said land is in a state of nature, and covered by valuable growing timber, which timber is very valuable, and makes said land much more valuable than it would be without said growing timber; that the defendants are engaged in cutting and removing and preparing to remove the valuable timber from said land, and have already cut 75 pine trees thereon of great value, which trees still remain thereon, and that plaintiff believes that said defendants, if not restrained from trespassing on said land, will continue to cut and remove therefrom the valuable timber thereon, and that said cutting was without his consent or knowledge; that said waste has greatly injured him, and, if defendants are allowed to continue the cutting of said timber, the injury will be of such a nature that it cannot be compensated in damages, and his injury will be irreparable,--does not show jurisdiction in a court of equity, and will be dismissed on demurrer.
2. If no demurrer be interposed; if upon the answer being filed it be found that the title to the land is brought in question it being claimed by both plaintiff and defendant,--the cause will be dismissed at the hearing.
3. It is not sufficient in such case that the bill alleges irreparable injury; the facts constituting such injury must be set forth.
4. A court of equity has no jurisdiction to settle the title and boundaries of land when the plaintiff has no equity against the party who is holding the land.
Appeal and supersedeas from circuit court, Calhoun county.
A. F. Haymond, for appellant.
J. G Schilling, for appellee.
This was a suit in equity, brought by James O. Watson against Harrison R. Ferrell, Joseph Gehring, Silas Parker, and Lawson S. Belt in the circuit court of Calhoun county, alleging that the plaintiff was the owner of a tract of land containing 963 1/4 acres, lying partly in Wirt and partly in Calhoun counties, but the greater part in Calhoun county, where he paid taxes on the same, which land was conveyed to him by one Eugene Wilson on the 21st of March, 1865, which deed of conveyance is of record in said county; and plaintiff files a certified copy of the same, and a plat and description of said land, with his bill. He also alleges that the greater portion of said land is in a state of nature, covered by valuable timber, which makes it much more valuable than it would be without said growing timber; that the defendants are engaged in cutting and removing and preparing to remove the valuable timber from said land, and have already cut 75 pine trees thereon, of great value, which still remain thereon and that plaintiff believes that said defendants, if not restrained from trespassing on said land, will continue to cut and remove therefrom the valuable timber, and that such cutting, removal, and trespass was without his knowledge or consent; that the waste committed on said land by defendants as aforesaid had greatly injured him, and, if defendants are allowed to continue the cutting of said timber, the injury to the plaintiff will be of such a character as not to be compensated in damages, and his injury will be irreparable. Complainant, being remediless in a court of law, prays that the defendants, and each of them, and all persons for them, be enjoined from committing further waste on said land, and from cutting any trees growing on said land, and from removing from said land any trees, timber, or logs cut and remaining thereon, and from rafting, sawing, removing, or using any timber or logs cut from said land and removed therefrom to other places in either of said counties, and from selling and otherwise disposing of any timber or logs cut from said land. Complainant further prayed that said defendants, and each of them, answer said bill under oath, and discover the number of trees cut upon said land by them, and what had been done with the same, and, if any part of the timber cut has been sold, to whom, and at what price, and whether the same has been paid for. The court having jurisdiction of this case, complainant prays that the defendants be required to account to him for the value of all the timber and logs cut and removed from said land and sold by them, and for all the injury sustained by the plaintiff by reason of the trespass and unlawful acts of and waste committed by the defendants aforesaid, and to this end complainant prays a reference of this cause to a master commissioner; and in pursuance of the prayer of said bill an injunction was awarded in accordance therewith.
To this bill the defendant Harrison R. Ferrell demurred, and for answer thereto said it was not true, as alleged in plaintiff's bill, that he and his co-defendants had been or were then engaged in committing any waste or cutting any timber whatever upon the lands of the plaintiff; and respondent shows that he is the bona fide claimant and owner of a tract of 119 3/4 acres of land situate on Lower Leading creek in the county of Calhoun, and lying about one mile from the Wirt county line, which tract is a part of a survey of 30,000 acres of land sold by G. J Arnold, commissioner of delinquent and forfeited lands for Gilmer county in the year 18--, and 279 acres thereof was purchased by I. L. Knight and Hiram Ferrell, who subsequently conveyed the same to one Joshua Conn, and said Conn subsequently conveyed 119 3/4 acres, part of said 279 acres, to one B. M. Wolverton, in whose name said 119 3/4 acres of land was subsequently assessed with taxes, and became delinquent and was sold in his name for the non-payment of such taxes, and was purchased by respondent, and the same was afterwards conveyed to him by Hugh P. Collett, recorder of Calhoun county, by deed dated December 9, 1872, a copy of which is filed therewith as part thereof, and upon which 119 3/4 acres respondent has resided and had actual continuous possession under the title aforesaid for over 16 years, and for the past 9 years claiming it as his own; and upon this tract respondent some time since sold to his co-defendants, Silas Parker and Joseph Gehring, 75 pine trees, as he had the right to do, and said Parker and Gehring recently entered upon said premises, under their contract with respondent, and have cut the 75 pine trees, and the same are now lying upon the said 119 3/4 acres of land Said trees were sold for the price of $52.50, of which $20 has been paid to respondent, and the residue remains unpaid. That the 119 3/4 acres of land so owned by respondent is a wholly different tract of land from that of the plaintiff's, and the same and the tract claimed by the plaintiff are not in conflict, and do not lap upon or clash upon each other, in fact, do not adjoin each other, as respondent understands and verily believes. Respondent knows nothing of his own knowledge as to the plaintiff's right to the land claimed by him, and hence neither admits nor denies the allegations of his bill in that respect, except that respondent denies its location and interference with the respondent's tract of 119 3/4 acres, as aforesaid, but calls for full proof on the part of the plaintiff of his title to said land and the location thereof, so far as such allegations affect or tend to affect the rights of respondent. Respondent also denies the allegations of plaintiff's bill that the alleged cutting constituted such waste as was irreparable and could not be compensated in damages, even if such cutting had been or was done upon the plaintiff's premises; on the contrary, respondent insisted that the same can and may be compensated in damages, and that respondent and his co-defendants are amply able and solvent to the extent of any such damages, even if such alleged cutting and waste had been committed upon the land of the plaintiff, which latter fact respondent denied; and respondent insisted that the injunction awarded the plaintiff should not be allowed to continue in force against him and his said co-defendants, even if such cutting had been done upon the plaintiff's land. No allegation of insolvency as to respondent or of either of his said co-defendants was made by said bill, or that they are of insufficient ability to make good any damages that might be sustained by the plaintiff, and no action of trespass had been begun against respondent or either of his said co-defendants; and respondent denied each and every allegation of the plaintiff's bill not therein specially referred to, so far as the same affects or tends to affect his rights to and in the 119 3/4 acres of land aforesaid, or relates to the trespass complained of; and, having answered, and denying all fraud, responde...
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