Solomon Attaquin & others vs. Phinehas Fish, 5 Met. 140

Wilde, J. We have considered this case with great attention, and with a strong inclination to come to such a decision as might determine, if we could, the conflicting claims of the com tending parties. Such a decision, by preventing all further litigation and expense, would undoubtedly be beneficial to both parties. But upon a full consideration of the case, as stated in the bill, we are of opinion that it is not within the equity jurisdiction of the court.

The bill alleges that the plaintiffs, with others, are the lawful proprietors of the lands described in the bill; and the charge is, that the defendant has unlawfully committed great strip and waste on the premises, by cutting and carrying away valuable wood, timber and grass, thereon standing and growing ; and that he threatens and intends to continue to commit farther strip and waste in and upon the premises, without any lawful right and title therein or thereto : That although he claims a right of possession of the premises, as a settled missionary or minister of the District of Marshpee, the same being lands set apart as a parsonage ; yet that in truth he has no such right of possession, and that if he ever had been lawfully settled as such missionary or minister, (which the plaintiffs deny,) he nevertheless had been lawfully dismissed by the plaintiffs from his said office and trust, long before the filing of this bill.

And the plaintiffs’ counsel contends that the case, thus stated, is within the equity jurisdiction of this court concerning waste. Rev. Sts. c. 81, § 8 At common law, a prohibition from the court of chancery, which was considered as the foundation of a suit to restrain or punish the commission of waste, lay only against tenant in dower, tenant by the curtesy, and guardian in chivalry ; but it was extended by the statute of Gloucester, 6 Ed. I. c. 5, and other statutes, to tenants for life and tenants for a term of years. 22 Vin. Ab. Waste, S. 2 Story on Eq. § 909. Eden on Injunctions, 144.

Waste, voluntary and permissive, is defined by Lord Coke to be spoil or destruction in houses, gardens, trees, and other corporeal hereditaments, to the disherison of him that hath the remainder in fee. Co. Lit. 53 a.

But courts of equity have interposed in many cases where the party is dis-punishable at law for committing waste : As where there is a tenant for life, remainder for life, remainder in fee ; the first remainder man for life will be restrained from committing waste, though no action would lie against him, at common law, for the commission of waste, because the next remainder man had not the inheritance ; and the remainder man in fee could not maintain an action of waste, at common law, because he had not the immediate remainder. 2 Story on Eq. § 913.

And so in many other cases, courts of equity have interposed to restrain acts which are deemed equitable waste, from their manifest injury to the inheritance, although not inconsistent with the legal rights of the party committing those acts, or threatening to commit them. 3 Wooddeson, 399—404. 2 Story on Eq. §§ 914, 915.

But the interposition of courts of equity was always confined to cases founded on privity of title, until Lord Thurlow, with much hesitation, granted a writ of injunction against a mere trespasser, who opened a coal mine on his own close, and took coals from the adjoining close belonging to the plaintiff—on the ground that irreparable mischief would be the consequence, if the trespasser were allowed to proceed. And in Mitchell v. Dors, 6 Ves. 147, Lord Eldon granted a writ of injunction against a trespasser, on the authority of the case before Lord Thurlow. But in Smith v.

Collyer, 8 Ves. 89, Lord Eldon refused an injunction against cutting timber, where the title was disputed. He says, “ I do not recollect any instance of this sort. The defendant denies that the plaintiffs are devisees” of the locus in quo. “ It is not waste but trespass, upon their own showing. There was no instance of an injunction in trespass, till the case before Lord Thurlow upon a mine, which, though trespass, was very near waste. In that case, the first instance of granting an injunction in trespass, there was no dispute whatsover about the right.

Here the right is disputed.” According to this case, it seems clear that a court of chancery, having full equity jurisdiction, would not sustain the present bill. The bill charges a trespass, and the defendant denies the plaintiff’s title. The main question is one of title, and should be decided in an action at law ; and nothing is alleged in the bill which shows that the plaintiffs have not an adequate remedy at law. In Norway v. Rowe, 19 Ves. 146, Lord Eldon says, “ the application, in the case of waste, depends upon privity of title acknowledged by the answer.

The court has certainly proceeded to extend injunctions to trespass ; but I do not recollect it ever granted on that head, where the fact of the plaintiff’s title to the property, on which waste was committed, was disputed by the answer.” In Livingston v. Livingston, 6 Johns. Ch. 500, 501, Chancellor .Kent remarks, that “it is not the general rule, that an injunction will lie in a naked case of trespass, where there is no privity of title and where there is a legal remedy for the intrusion.

There must be something particular in the case, so as to bring the injury under the head of quieting possession, or to make out a case of irreparable mischief, or vhere the value of the inheritance is putin jeopardy.” But whatever might be the decision of a court having full equity powers, on this point, we are very clear that this court has no jurisdiction in equity in the present case. By the Rev.

Sts. c. 81, § 8, the court has power to hear and determine in equity all suits concerning waste and nuisance ; and by c. 105, sundry provisions are made respecting waste and trespass on real estate, giving remedies by action at law, and in suits in equity, in sundry cases. By the first

section of c. 105, it is provided that “ if any tenant in dower, tenant by the curtesy, or tenant for term of life or years, shall commit or suffer any waste on the premises, the person, having the next immediate estate of inheritance therein, may have an action of waste against such tenant, wherein he shall recover the place wasted, and the amount of the ^damage done to the premises.” The 2d

section provides for a like action in favor of an heir, for waste done in the time of his ancestor, as well as in his own time. By several subsequent sections, tenants in common, coparceners and joint tenants are made liable to a penalty for any strip or waste done to the common property, to be recovered in an action of trespass. So if a tenant, during the pendency of any action for the recovery of lands, shall make any strip or waste thereon, he is liable to pay threefold damages, to be recovered in an action of trespass.

And the like penalty is incurred by any wilful trespass committed on the land of another person without license therefor. Then follows the 14th section, by which provision is made, £- that the supreme judicial court may hear and determine in equity all matters concerning waste, in which there is not a plain, adequate and complete remedy at law.” The question is, whether this

section can, by any reasonable construction, be extended to cases of trespass, as well as to those of waste ; and we are of opinion that it cannot. The uniform rule of construction of the various statutes conferring chancery jurisdiction on this court has been, never to take cognizance of any subjects which are not expressly brought within it by statute ; and not to extend our jurisdiction to such subjects by implication ; and certainly not when the implication is doubtful.

Now if the legislature had intended to extend the equity jurisdiction of the court to cases of trespass, as well as to those of waste, it would have been so expressed. The learned commissioners, who framed the revised statutes, must, we think, have had in mind the technical distinction between waste and trespass, and the inference is, that the 14th

section was not i itended to embrace cases of trespass. But if no such inference could be made, we think it very clear that this

section cannot be extended so as to include any trespass not mentioned in the statute ; and this is not such a trespass.

The 11th sec tiun j rovides, that “ if upon the trial of such an action,” (tres pass) ££ it shall appear that the defendant had good reason to believe that the land on which the trespass was committed was his own, or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable only for the single damages assessed therefor.” Now supposing that the trespass complained of in this suit may be proved to be such a trespass, still we have no jurisdiction in equity; for the provision refers clearly to a trial in an action at law wherein the plaintiff demands threefold damages ; and that is an adequate and an appropriate remedy.

Another ground on which the plaintiffs rely is, that here are or may be ££ more than two parties, having distinct rights or interests, which cannot be justly and definitively decided and adjusted in one action at the common law.” Rev. Sts. c. 81, § 6. But this clearly is not such a case. If the plaintiffs are proprietors of the locus, they alone are entitled to damages ; or if the locus is the property of the district of Marshpee, then the district alone is entitled to sue; so that in either case the remedy at law is the proper remedy. Bill dismissed