William M. Carney, et al., Appellants, vs. Jesse Hadley, et al., Appellees, 32 Fla. 344

Mabry, J.: According to the allegations of the bill before us,, the acts, against the doing of which an injunction was., sought and obtained, amounted to a trespass upon real estate. This trespass, according to the bill, consisted in entering, upon the land of complainants, boxing the pine trees standing thereon for the production of turpentine and the removal of the turpentine from the trees and the land. The case arose and was determined in the Circuit Court before the enactment of

Chapter 3884, laws of 1889, and must be disposed of independently of the provisions of that act. Courts of equity do not ordinarily extend the harsh remedy of injunction to cases of trespass, but leave the redress of such grievances to the courts of law, where originally jurisdiction in such matters was lodged.

It is said that originally courts of .equity did not grant injunctions to restrain trespasses in any case, but whether in analogy to the remedy to prevent waste, or to prevent injuries supposed not to be adequately recompensed by damages in the legal forum, it is now firmly settled that injunctions will-be granted to restrain trespasses under certain conditions.

The inadequacy of the legal remedy is the foundation and indispensable prerequisite for the interposition of chancery in such matters, for the obvious reason that a legal remedy has been devised to redress such wrongs, and so long as the law provides an adequate remedy, equity has no right to interfere. The general rule, as has often been stated, is that in order to give the court of equity jurisdiction to enjoin torts to property, two conditions must concur: First.

The complainant’s title must be admitted, or-be established by a legal adjudication; and, second,. the threatened injury must be oí such a nature as will ■cause irreparable damage, not susceptible of complete pecuniary compensation. The courts have generally accepted the statement oí the rule here given as correct, although they have encountered considerable difficulty in its application to the facts of the various cases that have arisen out of the complication of human transactions. Jerome vs. Ross, 7 Johnson’s Ch., 315; Gause vs. Perkins, 3 Jones’ Eq., 177; McMillan vs.

Ferrell, 7 W.Va., 223; Citizen’s Coach Co. vs. Camden Horse R. R. Co., 29 N. J. Eq., 299; Echelkamp vs. Schrader, 45 Mo., 505; Hamilton vs. Ely, 4 Gill, 34; Catching vs. Terrell, 16 Ga., 576; Mayor etc., of Frederick vs. Groshen, 30 Md., 436; Indian River Steamboat Co. vs. East Coast Transportation Co., 28 Fla., 387, 10 South. Rep., 480. To authorize the issuance of the writ of injunction by a court of chancery the injury threatened must be of such a peculiar nature that compensation in money can not atone for it.

The vieW expressed by Chancellor Kent is, that “it must be a strong and peculiar case of trespass, going to the destruction of the inheritance, or where the mischief is remediless, to entitle the party to the interference of this court by injunction.” Jerome vs. Ross, supra.

In one case of cutting timber where the petition alleged that the defendants were continuing the trespass with a view to carrying away the timber, and that they intended, if not restrained, to take and carry away the timber (converted into cord wood) from the premises, and so dispose of it as to put it beyond the reach of petitioners, the court in holding this not to be sufficient, said: “We do not say that there may not be. cases where the legal remedy would be incomplete, and in which an injunction might properly issue.

For instance, as above suggested, the defendants might be entirely insolvent; the trespass might grow into a nuisance or waste; numberless .suits might have to be brought, in order to make the remedy complete; the trespass might be by a party occupying a fiduciary relation; or the injury of such a character that the loss would be irreparable, and not be compensated in dollars and cents; and in any such, or similar cases, an injunction might be proper.” Cowles vs. Shaw, 2 Iowa, 496.

It is apparent that quite a field for the exercise of chancery powers is here opened up, and many cases show that this court has extended its jurisdiction in the directions indicated. It is said that a more liberal practice prevails now in granting injunctions than obtained formerly. But the rule seems to have been adhered to, however, in the cases, that a clear case of the inadequacy of the legal remedy must.be shown in order to justify the interposition of the court of chancery by the harsh remedy of injunction.

The trespasses alleged in the bill under consideration consist in entering the land of complainants and boxing trees for the production of turpentine. These trespasses are alleged to be continuous and frequent, and that the defendants reside in the state of Alabama and have no property in this State; also, unless the said defendants be restrained from their repeated and innumerable trespasses, complainants were remediless save by repeated, vexatious and multiplied suits which would be fruitless in this State, because of the alleged want of property in this jurisdiction by the respondents.

The answer positively denies the allegation in the bill that respondents were not possessed of any property in this State, and it is alleged that Carney, who is the only person asserting any claim to the land, owns at least six thousand acres in Escambia county, Florida. It seems that a suit for damages in reference to the , subject-matter of this proceeding and between the same parties, is pending in Escambia county, Alabama.

No effort was made on the part of appellees to establish the allegation that appellants were not possessed of any property in Florida, but the showing made by the latter is clear that Carney at the time of filing the bill was possessed of considerable real property situated in Escambia county. Florida, amounting to at least six thousand acres. Insolvency is an element in determining whether or not the court should act in granting an injunction in a case. In Cause jvs.

Perkins, supra, it is said that the “injury must be of a peculiar nature, so that compensation in money can not .atone for it; where from its nature it may be thus atoned for, if in the particular case the party be insolvent, andón that account unable to atone for it, it will be considered irreparable. ’ ’ And in many of the cases where injunctions have been granted to restrain trespasses the insolvency of the trespasser has been an important element. Our court has said that insolvency alone of the defendant will not be sufficient to authorize an injunction. Pensacola & Georgia R. R. Co. vs.

Spratt & Callahan, 12 Fla., 26. Under the proof in the record before us insolvency cannot be claimed in support of the decree. The showing is that one of the respondents, and who is the real party in interest in the subject-matter of this suit,- owns considerable property within the jurisdiction of the court, and liable to any judgment for damages -that may be recovered against him.

In cases of repeated trespasses where it is necessary to quiet a rightful, admitted or established possession, chancery has often interposed to prevent a multplicity of suits, although there may be a remedy at law, and this is a well recognized head of chancery jurisdiction when a proper case is presented. The court will not, however, grant an injunction against one person merely because he is guilty of repeated trespasses where the legal remedy affords an adequate and complete redress in damages.

The rule, as stated by many decisions, is, tha.tto justify the interference of a court of equity in cases of trespass in order to avoid a multiplicity of suits, there must be several persons controverting the same right, and each standing upon his'own claim or pretension. Jerome vs. Ross, supra; Hatcher vs Hampton, 7 Ga., 49; Nicodemus vs. Nicodemus, 41 Md., 529; Thorn vs. Sweeney, 12 Nev., 251; Roebling vs. First National Bank, 30 Fed. Rep., 744; High on Injunctions, sec. 700. The bill is filed against Carney and two others alleged to be his foremen.

Carney is the only person who is making any claim to the land as against appel-lees, and is the sole moving agency in the alleged invasion of their rights. The other persons named are simply agents and servants, and they do not assert any claim to the land. What they do is for Carney and in. his name, and the controversy in reference to the land is solely between appellees and appellant Carney. According to the rule just stated, there would be no occasion for the interference of chancery on account of the multiplicity of suits between the parties.

But in addition to the rule mentioned, it seems to be clearly settled that whenever the complainant’s title is disputed a court of equity will not interfere by injunction, or make perpetual an injunction already granted, on the ground of a multiplicity of suits, until he has procured his title to be established by a successful trial at law. The ground upon which this action is based is because as a general thing courts of equity do not try disputed legal titles to land. 1 Pomeroy’s Eq. Jur., sec. 252; Poyer vs. Village of Des Plaines, 123 Ill., 111; Carlisle vs. Cooper, 21 N. J. Eq., 576; Irwin vs.

Davidson, 3 Ired. Eq. 311; Caro vs. Pensacola City Co., 19 Fla., 766. The answer shows that the title of appellees was disputed, and an examination of the testimonyintherec-ord does not disjjel the presence of a serious issue between the parties as to the legal title to the land in question. In any view we take of the case there is nothing to helj) the final decree in favor of appellees on the ground of the right of the court to interfere on account of a multiplicity of suits.

But can the decree in favor of appellees making the injunction perpetual be supported on the ground that appellants were committing an irreparable injury within the meaning of the rule already stated? It is safe to say that even in cases of the destruction of timber by cutting and removing it from the land, it is not sufficient in order to obtain an injunction to simply allege that such cutting and removal amount to irreparable iixjury to the land, and a great damage and loss to the owner.

In addition, it must appear that the trees are of such peculiar value and importance to the estate as that their destruction or injury will so affect the uses and purposes for which it is designed as to make their loss an irreparable injury to the owner. If adequate compensation can be made in money, the remedy is at law. In Green vs.

Keen, 4 Md., 98, the allegation as to the trespass was, in substance, that the defendant had entered upon the premises mentioned and had felled timber trees and other trees standing upon the land, and committed other and further waste thereon by driving wagons and other vehicles over the same, and had threatened to fell other timber trees on the land to its irreparable injury and to the great dam.age and loss of complainant. This was held not sufficient to authorize an injunction. It was alleged in Shipley vs.

Ritter, 7 Md., 408, that complainant’s home, consisting of two hundred and forty acres, had on a part of it'timbe^ consisting of' oak, chestnut, hickory and other growth common to the country, and that it was ‘ ‘particularly valuable and desirable to complainant as timber land, so much so that it would be and is attended with irreparable injury for the same to be cut down and destroyed, or converted into pasture or waste land; that a portion of said timber land, and the portion which is in part the subject of the waste and destruction hereinafter complained of, is so situated in reference to complainant’s house and outbuildings that it affords them protection and shelter from the severity of the seasons of summer and winter, besides being ornamental, and that on these accounts also the waste and destruction hereinafter set forth and complained of is attended with and is an irreparable injury to complainant.” The trespass of entering upon and destroying the timber by defendants was also alleged.

The same court held this bill to be sufficient for an injunction. The principle applied here is this — the trespass complained of went to the destruction of that which was essential to the value of the estate, and to the destruction of the estate itself, in the character in which it had been enjoyed. When such an injury is inflicted it is irreparable, in the meaning of the rule, and can not be compensated by the legal remedy, and hence a court of chancery, ever ready to prevent an injustice, steps forward with its restraining power to prevent the threatened injury.

The character of the injury as being-capable of compensation, or such as is irreparable in its nature, is the distinguishing feature in determining the •jurisdiction of chancery in such cases. West vs. Walker, 3 N. J. Eq. (2 Green), 279; Thompson vs. Williams 1 Jones’ Eq., 176; Powell vs. Rawlings, 38 Md., 239; Thatcher vs. Humble, 67 Ind., 444; Hatcher vs. Hampton, supra; Thomas vs. James, 32 Ala., 723; Hillman vs. Hurley, 82 Ky., 626. The averments of the bill in Gause vs.

Perkins, to which reference has already been made, were that most of the land was fit for little else than the production of turpentine, staves and timber, and that defendant had entered upon the land by his agents and servants and boxed some twenty-five thousand trees for producing turpentine, and had carried on the business of making turpentine on this land and carrying it off and selling the same in large quantities.

Further, that he was overworking the trees, and in a few years they would be worn out, useless and unfit for making turpentine, and defendant was at the time of filing the bill engaged in committing other wastes, spoil and destruction upon the land, and was thus doing an irreparable injury to the land and would render the same utterly useless and valueless unless he was restrained by injunction.

The court decided in this case that the boxing of pine trees for turpentine, and working them for such purpose, was not destruction, and that the’ court could not see that the injury would be irreparaable unless it was shown that the defendant was insolvent, and, on that account, unable to atone for any injury that he might do the complainant. In another case, Bell vs. Chadwick, 71 N.

C., 329, where an injunction against working pine trees for turpentine was sought, the court says: “It should be a very clear case of trespass, and irreparable mischief, to justify a court in crippling the industry of the country and preventing the full development of our resources.” As was said in a still later case, McCormick vs. Nixon, 83 N. C., 113, the decisions in that state were placed upon the ¿■round of justice to the party sought to be enjoined, and in obedience to public policy, which favors the use to which lands are adapted as means of developing the resources of the country.

We have been unable to find any case holding that the simple working of pine trees for turpentine in the •customary manner was irreparable injury, to prevent which a court of equity would grant an injunction. In Stevens vs. Beekman, 1 Johnson’s Ch., 317, the allegation, in effect, was that defendant had entered the premises, cut down and taken away timber, and that the part of the land on which such waste was committed, was principally, if not exclusively, valuable on account of the timber. This was held insufficient to sustain the injunction.

So far as the loss of the turpetf-tine is concerned, or damage to the trees in the production of turpentine, the bill entirely fails to exhibit a case of irreparable injury. It is made to appear that the trees are valueless except for turpentine and timber, and without them in a condition to produce turpentine and timber the land would be of little value; also that appellees were being deprived of the turpentine by reason of the acts of appellants.

Tt' does not appear from this that the working of the trees for turpentine will be a destruction of them, nor does it appear that the alleged injury is of such a nature as that it can not be fully compensated in damages.

There is an allegation in connection with the above, that the extraction of the turpentine from the trees greatly lessens their value as timber producing trees, but here again there is an absence of any clear showing that the injury resulting from this source amounts to a destruction of the estate, or is such as can not be fully atoned for in money, and that a recovery for the damage done-to the trees as timber in working them for turpentine-would not be full and adequate for all the injury sustained.

There is no special allegation of damage showing that pecuniary compensation will not compensate-for all the loss. The court we think was in error in not dissolving the injunction on final hearing, without reference to the question of appellee's title. The answer denied the title and possession of appellees, and on the proof it is contended by appellants that the court should have refused relief on the ground of want of title.in appel-lees. What we have said disposes of the case, and we-need not discuss the question of title. The decree of the court should be reversed, and it is so ordered.