Richard Green vs. Aquila D. Keen, 4 Md. 98

Tuck, J., delivered the opinion of this court. The complainants filed their bill on the equity side of Harford county court, claiming to be the equitable owners of certain land therein mentioned, and alleging that the appellee, in fraud of their rights, and claiming to be the owner of the land, was committing waste, by cutting and selling the timber and other trees. The bill prayed for an injunction to preserve the property, and that the defendant might be decreed to convey the lands to the complainants.

The defendant, before answering the bill of complaint, filed his petition in the canse, alleging his title to the land in controversy, that the complainants were committing waste thereon, by cutting the timber and other trees, to the irreparable injury of the land, and to the great damage and loss of the petitioner. The court granted an injunction on this petition, from which Green, one of the complainants, appealed. The only difference between this case and Hamilton vs.

Ely, 4 Gill, 34, is, that there the acts complained of wmre not alleged to be irreparable — the petition in this case does contain such an averment. But the court held, that even then the bill would have been defective in not stating “the facts, to show the apprehension of further acts of trespass, well founded, to satisfy the conscience of the court.” We do not wish to be understood as saying, that felling timber and other trees may not be restrained by injunction.

But, on such application, it must appear that the trees have a peculiar value, or are of great importance to fhe estate; as, for example, that they are fruit or ornamental trees, or, if timber and wood, that the enjoyment of the estate will be so affected by their destruction, as to make the alleged damage irreparable. If compensation can b.e made, the remedy is at law. 9 Gill and Johns., 474. 1 Md. Rep., 525. The petition being defective in these respects, the injunction was improvidently granted. We think that the objection to the form of the proceeding was not well taken.

The controversy was pending in equity involving the title to the property, during which an application was made, looking to its preservation until the title could be ascertained. In principle the case does not differ from Wagner vs. Cohen, 6 Gill, 97. See also Ches. and Ohio Canal Co., vs. Young, 3 Md. Rep., 480. Order reversed with costs, and cause remanded.