Doke v. Peek

Cockrell, J. Appellee, in a bill exhibited against the appellants, alleged that he was the owner of the timber on certain described lands, and was in the actual possession of said property; that defendants without authority of law and without any valid right, title or interest in the said land, or to the said timber thereon, had gone upon said lands with a large force of hands and had cut and were cutting the timber for the purpose of making cross-ties; that the said land was valuable chiefly for the timber thereon, and was wild, unimproved and unoccupied, and if the said timber were cut and removed as aforesaid, the chief value of said land would be destroyed. It is alleged on information and belief that the defendants were both insolvent ; it is prayed that the defendants be enjoined from [246] cutting and removing, timber off or from said land and from removing any timber therefrom that may have been cut by the defendants; and further, that an accounting be had of the timber already cut. From a decree granting a temporary injunction p.s prayed this appeal is taken. On what is the supposed, equity for an injunction based? The frame of the bill would suggest an attempt to follow section 14G9 of the Revised Statutes, which' reads “courts of chancery shall entertain suits by any person claiming to own any timbered lands in this State, to enjoin tresspasses on such lands by the cutting of trees thereon, or the removal of logs therefrom, * * * and in-such suite the courts shall cause an account to be taken of the: damage to the complainant from any of said tress-passes * * * .” The allegations of the bill, however, fail to. come up to the requirements of this section. Complainant does not claim to own any timbered lands in this State, but to be “the owner of the timber upon .the land,” as though there were a complete separation of the title to the timber and of the title to the land whereon the timber stand.s, and the whole scope of the bill shows a well defined understanding of the terms so as to indicate that the distinction was intentional and not a slip of the pen. It is clear from an inspection of the statute that it was the owner of the land the law was seeking to protect and not the purchaser of timber rights. We do not consider these views as conflicting with those expressed in Jenkins v. Lykes, 19 Fla. 148, wherein it was held that a parol sale of standing trees was void as being a sale of an interest in land. While we do not hold that a sale of the timber is not a sale of an interest in the land, we do hold that such a purchaser is not the “owner of timbered lands” within the meaning of the statute '. [247] Is there equity for an injunction irrespective of the statute? in Wiggins v. William, 36 Fla. 637, 18 South Rep. 859, this court considered this statute as extending the powers of the chancery court beyond the limits of its jurisdiction theretofore exercised, “in this, that claimants of timbered lands are given the right to have an injunction against the tresspasses mentioned without reference to the character of the injury as being irreparable or the inadequacy of the legal remedy for the wrong, or actual possession of the claimant.” There is an entire absence of a showing of irreparablé injury to the complainant in this bill. It is alleged that if the timber he cut, the chief value of 111‡ land will he destroyed, but this injury to the land as lahd would fall not upon the complainant, it would fall upon some third person who is the owner of the land and who is not a party to the proceedings. There is no allegation that the trees are of peculiar value by virtue of their nature, the purpose for jvhich they are acquired, the uses to which they Avere to be put, or of the conditions surrounding their owner, the complainant, so as to show the damages would be irreparable. Even if insolvency of the defendants could he an independent equity sufficient to support an injunction, the proof of such insolvency at the hearing must be direct and positiA’e and not upon information and belief. The affidavit used at this hearing, read in the light of the allegations of the bill, does not come up to the rule laid down in Ballard v. Eckman & Vetsburg, 20 Fla. 661, which requires the oath of the person from whom the information is obtained. For the reasons stated the temporary injunction should not have been granted. The order granting it is reversed and the cause remanded for further proceedings.