Woodford v. Alexander

• Citation: 35 Fla. 333,17 So. 658
• Parties: WOODFORD et al. v. ALEXANDER et al.
• Decision Date: 30 April 1895
• Court: United States State Supreme Court of Florida

17 So. 658

35 Fla. 333

WOODFORD et al. v. ALEXANDER et al.

Florida Supreme Court

April 30, 1895

Appeal from circuit court, Marion county; John F. White, Judge.

Bill to quiet title and for an injunction by Seigmore Alexander and others against John Woodford and O. H. Edwards. From the decree rendered, defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. When a complainant has a legal title to real estate, he must have possession before he can invoke the aid of a court of chancery to remove a cloud from his title, unless the land is wild and unoccupied, in which case the bill may be maintained although complainant has no other than constructive possession resulting from legal ownership; but it is essential to show and allege in such case that there is no such possession of the land by another claimant as will authorize a possessory remedy at law for it.

2. Possession of land is denoted by the exercise of acts of dominion over it, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, and not of an occasional trespasser.

3. Two conditions must concur to give a court of equity jurisdiction to enjoin a mere trespass on real property: First complainant's title must be admitted, or legally established; and, second, the trespass must be of such a nature as to cause irreparable damage, not susceptible of complete pecuniary compensation. The inadequacy of the legal remedy is the foundation and indispensable prerequisite for the interference of chancery in such cases. This was the rule prior to the adoption of the act of June 4, 1889.

4. In cases of destruction or injury of timber standing on land it is not enough to obtain an injunction to simply allege that such destruction or injury will amount to irreparable damage to the land, and loss to the owner. It must appear that the timber is of such peculiar value to the estate as that its destruction or injury will so affect the uses and purposes for which it was designed as to make its loss an irreparable injury to the owner. If adequate compensation can be made in money, the remedy is at law.

5. Where a decree pro confesso has been prematurely and improperly entered, and application is promptly made by a defendant to set it aside, he should not be taxed with the costs of the suit up to the time of the application, where no blame attaches to him.

COUNSEL Miller & Spencer, for appellants.

OPINION

MABRY C.J.

Appellees husband and wife, residents of Kings county, state of New York, filed a bill in the circuit court for Marion county Fla., in April, 1889, against John Woodford, of West Winstead, state of Connecticut, and O. H. Edwards, of Marion county, Fla., appellants here. The bill alleges substantially that Fanny Alexander was the true owner by direct deeds from the trustees of the internal improvement fund of the state of Florida, of the E. 1/2 of the N.W. 1/4 and the N.E. 1/4 of section 35, township 14 S., range 23 E., situated in Marion county, and was such owner at the time of a certain tax sale, referred to in the bill; that the lands were what are commonly known as 'swamp and overflowed lands,' their chief value, and in fact their only value, consisting in the cypress timber growing thereon, and said lands were all forest, in the swamp bordering on the Ocklawaha river; that in felling the timber it was usual to girdle the trees by axe chops, and when they died to cut them down, and saw them up into lumber and shingles, which were of great value in the market.

By an amendment to the bill it was further alleged that, while complainants were nonresidents of the state, and never actually lived upon the lands, because they were covered with water, and unfit for the habitation of man, yet they have at all times had an agent in Marion county, who had the possession and control of the lands by running off trespassers, preventing the cutting of timber, paying taxes, and exercising such other acts of ownership as was usual with wild forest lands. It was then alleged that Woodford, through his agents and servants, of whom Edwards was foreman, was girdling or deadening large quantities of said timber for the purpose of hauling the same to the mill, to be sawed into lumber and shingles, and, unless restrained, he would continue his said depredations upon the lands until the same ceased to be of any value; that the cypress timber cut from the land was lying on the ground, and defendants were preparing to remove and would remove the same unless restrained by the court, and that Woodford was a nonresident, and complainants were not advised whether he was solvent or insolvent, or whether any damages could be collected for the said trespass; that Woodford pretended to justify his unlawful acts and trespasses under and by virtue of a pretended tax deed to the lands for the taxes assessed and levied thereon for the year 1885. The tax deed is alledge to be illegal and ineffective to convey any title to the land, although by the laws of Florida it is made prima facie regular and sufficient, and casts a cloud upon complainants' title to the lands, and impairs their market value. The bill sets out particularly various irregularities, omissions, and defects in the tax-sale proceedings upon which the tax deed is predicated, showing its invalidity; but there is no contention here that the grounds of avoiding the tax deed are not sufficient for that purpose, and the allegations of the bill in reference to them need not be stated.

Complainants further allege that they were nonresidents of the state during the year 1885, but had an agent in the state to pay the taxes on said lands; and that if the taxes for the year 1885, for the nonpayment of which said lands were sold, were not paid, it was owing to some accident or mistake on the part of said agent; and, should it be developed that said taxes were not paid, complainants were willing to pay the same, and in their bill offered to bring into court any sum of money that had been paid on account of said taxes, together with the interest thereon, as provided by law.

The prayer of the bill is to have the tax deed canceled as a cloud upon the complainants' title, and that Woodford, his agents and servants, and Edwards, as foreman, be enjoined from cutting the timber on said lands, or from removing any trees that had been cut, or in any manner interfering with said lands. There was also a prayer for process.

An injunction was granted, as prayed for in the bill. Service by publication was made as to Woodford, returnable the 25th of May, 1889, and, upon his failure to appear, a decree pro confesso was on that date entered against him by the clerk. On the 29th of that month an application was made by Woodford to have the decree pro confesso vacated, and to be permitted to demur or answer. The court opened the default, but required Edwards to pay the costs of the suit up to that date. Both Edwards and Woodford demurred to the bill, the grounds of the demurrer being: First, the bill is without equity; second, Edwards was an unnecessary and improper party; third, the bill showed Woodford to be in possession of the land, claiming title, and that the complainants were out of possession; fourth, the acts set up in the bill are mere trespasses, and no irreparable damage is shown; and, fifth, a court of equity has no jurisdiction to enjoin waste, the defendants being in possession, claiming title. The demurrers were heard and overruled by the judge of the Third circuit, to whom application was made by petition, sworn to, stating that the judge of the Fifth circuit was unable to act on account of absence from the circuit. The order of the judge of the Third circuit overruling the demurrers recites that proof was made of the absence of the judge of the Fifth circuit from the state. An appeal was entered from the order requiring Woodford to pay the costs of suit upon opening the default and from the order overruling the demurrer.

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