Opinion
04-03-1888
NEWALL et al. v. STAFFORDVILLE GRAVEL CO.
I. W. Carmichael and B. Gummere, for complainants. Charles French, for defendant.
On rule for a rehearing.
For statement of facts see Newall v. Gravel Co., 11 Atl. Rep. 495.
I. W. Carmichael and B. Gummere, for complainants. Charles French, for defendant.
BIRD, V. C. This case is before me on a rehearing. On the return of an order to show cause, an injunction was allowed restraining the defendant from the completion of a railroad over the land claimed by the complainant, and from removing gravel from said lands. My reasons therefor were at that time briefly set forth. See 11 Atl. Rep. 495. Counsel for the defendant, conceiving that the two points which seemed to the court to be important had not been fully presented, so represented to the court, and, asking for a rehearing, it was granted, the court being as anxious, in such matters, to have any mistake which it may have committed pointed out as the defendant was anxious to avoid the consequences of any such mistake. However, I am not convinced that the order heretofore advised was outside of the rule which has been long established in such cases. The simple question is whether it is proper, when the complainant comes in court, and shows by his bill and affidavits that he has a paper title, and has the possession of land under that paper title, (such possession being consistent with the nature or character of the land, the land being thickly covered with timber and underbrush,) and shows also that the defendant has entered into actual possession, claiming the right to such possession, and showing the defendant is digging up and removing the soil from place to place, and point to point, though it may not be carried off the premises, but so far disturbing it as is necessary to grade for a railroad track, and threatens to complete the construction of said road by grading across the entire tract, laying ties and rails thereon for the purpose of running locomotives and cars,—I say the question is whether, in such case,the complainant is entitled to the protection of his claim of right until the disputed point can be settled by an action at law, or not. The counsel for the defendant cites many authorities upon which I rely. In such cases, where the court does not perceive that irremedial mischief may be done by the alleged trespass, or does not perceive that there will be such destruction to the inheritance as cannot be reasonably compensated for in damages, an injunction will not go; and that is the tenor of the decisions upon which the defendant relies. But when the contrary appears; when the court is reasonably apprehensive that an irreparable wrong will follow the threatened act of the defendant, or that such damages will ensue to the inheritance as will render it highly probable that a jury cannot compensate the owner for, or if the inheritance itself is destroyed thereby; then it is not error to allow the injunction, pending proceedings to determine the question of title in a court of law. West v. Walker, 3 N. J. Eq. 279; Kerlin v. West, 4 N. J. Eq. 449. In the case of Lanier v. Alson, 31 Fed. Rep. 100, the court declares that equity will not entertain a bill to enforce merely the legal title to land, and quotes from Lord ELDON, who said that in a bill for account, and an injunction to stay waste, stating that the defendant claimed by title adverse to the complainant, he stated himself out of court as to the injunction. Then the court, in the case cited, adds: "This doctrine has been greatly modified in modern times, and it is now a common practice where irreparable mischief is being done or threatened, going to the destruction of the inheritance or of the estate,—such as the extraction of ores from a mine, or cutting down timber, and for the removal of coal,—to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title." See, also, Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. Rep. 505, from which case the language above quoted seems to have been taken. This last case refers to Jerome v. Ross, 7 Johns. Ch. 315-332, where numerous illustrations of the proper application of the doctrine will be found. See, also, Le Roy v. Wright, 4 Sawy. 530-535, in which last case reference is made to the cases of West v. Walker, supra, and Kerlin v. West, supra; and see, also, Mayor v. Groshon, 96 Amer. Dec. 591.
In addition to what has been said, it is not out of place to remark the fact, that if the complainant has a just claim to the land in question, every act of the defendant in the movement of his trains would be a trespass, for which the complainant would be entitled to his action at law, which, at once it is perceived, enables the complainant to invoke the aid of this court to prevent a multiplicity of suits during the pendency of the proceedings at law for the determination of the title. This doctrine is so familiar that I will not be required to cite authorities respecting it. I think the rule for a rehearing must be discharged, with costs.