Heaney v. Butte & Montana Commercial Co.

De Witt, J. A trespass, as such, is not subject to the control of a court of equity, by injunction. (Stevens v. Beekman, 1 Johns. Ch. 317; Livingstone v. Livingstone, 6 Johns. Ch. 497; 10 Am. Dec. 353; Jerome v. Ross, 7 Johns. Ch. 315; 11 Am. Dec. 484; Shipley v. Ritter, 7 Md. 408; 61 Am. Dec. 371; Cowles v. Shaw, 2 Iowa, 499; Kerlin v. West, 4 N. J. Eq. 449; Bethune v. Wilkins, 8 Ga. 118; Citizens’ Coach Co. v. Camden Horse R. R. Co. 29 N. J. Eq. 299; Western M. & M. Co. v. Virginia C. Coal Co. 10 W. Va. 296; McMillan v. Ferrell, 7 W. Va. 223.) But an injunction may issue to prevent a trespass in “ cases of great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed. (Jerome v. Boss, supra.) In this case is an extensive review of the decisions by Chancellor Kent, and a clear statement of the principles governing the invocation of the writ of injunction against trespass. (See, also, to the same effect the cases last cited above, and Davis v. Reed, 14 Md. 142; Green v. Keen, 4 Md. 98; Weigel v. Walsh, 45 Mo. 560; Anderson v. Harvey’s Heirs, 10 Gratt. 398.) That equity may restrain trespass, the injury must appear to be irreparable, and that the plaintiff has no adequate remedy at law. In the case at bar, the plaintiffs have a remedy in an action at law. [594] Is that remedy adequate? Is there anything to show that it is not? An important element in demonstrating that the remedy at law is inadequate is a showing that the defendant is insolvent, and that therefore a judgment at law would be worthless. (Musselman v. Marquis, 1 Bush, 463; 89 Am. Dec. 637; and Cowels v. Shaw, McMillan v. Ferrell, Western M. & M. Co. v. Virginia C. C. Co., Kerlin v. West, and Weigel v. Walsh, cited above.) In the case at bar it does not appear that the defendant is insolvent. Plaintiffs could recover from it in law the full amount of the damages they suffered. The law, as we deduce it from the eases, is, that in order to enjoin a trespass, it must appear that the injury is irreparable, and destructive of the estate in the character in which it is enjoyed. Applying the rule to the case at bar, we observe that the estate had not been used at all. The character in which plaintiffs intended to use it was as a limestone mine. Cutting the timber from the mine would not destroy or injure the mine. It would result only in rendering fuel and timber at the mine more expensive. Plaintiffs say that they could not get the trees back again. Is there anything about the trees that makes them peculiarly useful as fuel or timber? Chancellor Kent says, in Jerome v. Ross, supra: “The plaintiff speaks of the injury as irreparable, because the loads of stone, taken from the mass of rock, cannot be replaced or restored; but as he does not state that the rock was of any use to him, as proper or fit for building, fencing, etc., or that it was even desirable as an object of ornament or taste, there was no need of having the same identical fragments of stone replaced, and the injury was not, in the sense of the law, irreparable. It was susceptible of a perfect pecuniary compensation. The case, therefore, seems to resolve itself into this single point, whether a court of equity ought to interpose, by injunction, to restrain a trespass, when the injury does not appear to be irremediable and destructive to the estate, and when the ordinary legal remedy in the courts of law can afford adequate satisfaction.” It was by no means necessary in the case at bar that plaintiffs should have the identical trees for fuel and timber. Plaintiffs say that it is difficult to have conveyed to the ground any con [595] siderable amount or quantity of timber, or wood, or material for fuel, and to so convey it would necessitate great and excessive expense and outlay, and cause the working of the mine to result in failure or loss to plaintiffs. But removing the wood, which plaintiffs intended to use as fuel and timber, does not destroy the inheritance, does not ruin the estate, as is said in the decided cases. It is said to cause a loss and damage, for which plaintiffs may recover the full value at law, and for all that appears in the record, such amount recovered will be collected from defendant. Chancellor Kent says (Stevens v. Beekman, supra): “ This is a case of an ordinary trespass upon land and cutting down the timber. The plaintiff is in possession, and has adequate and complete remedy at law. This is not a case of the usual application of jurisdiction by injunction; and if the precedent were once set, it would lead to a revolution in practice; for trespasses of this kind are daily and hourly occurring.” There is sometimes difficulty in determining whether the trespass is of such a character as will warrant the interposition of an injimction. The cases must stand upon their own facts. The chancellor has, as has also the appellate court, the whole matter under view, and must decide the equity of each case. The case before us does not present difficulty. We observe that the injury to plaintiffs is not of that particular or special nature that goes to the destruction or ruin of the estate in the character in which it is proposed to enjoy it; and the injury is not shown to be irreparable, in that, if the complaint of injury be well founded, plaintiffs have a right to a judgment at law for the whole damage that can be shown, which judgment, as far as the record discloses, is collectible from a solvent defendant. It is therefore ordered that the orders of the District Court granting the injunction, and refusing to dissolve the same, be reversed, and the case remanded, with directions to that court to dissolve the injunction. Blake, C. J., and Harwood, J., concur.