Simmons v. Day

Ostrander, J. (after stating the facts). In asserting equitable jurisdiction, complainant claims to have brought his case, by the averments in his bill, within the rule of Campbell v. Kent Circuit Judge, 111 Mich. 575; [4] Brassington v. Waldron, 143 Mich. 364, and the cases cited in the opinions delivered in those cases. In both of those cases, the court was asked to find that a boundary-line between properties had been established and to restrain threatened trespasses, likely to result in irreparable injury, pending the determination of the principal issue. Unlike the instant case, however, the question of the true boundary line was submitted to the court for authoritative and final determination, and in Campbell v. Kent Circuit Judge it was asked that the title be quieted. The questions presented to this court in-those cases arose and were determined upon the pleadings. In the case now before us, counsel for complainant could have labored under no misapprehension concerning the" issue made by the bill and answer. Title to the land was not incidentally involved in the matter of title to the timber; title to the timber depended upon title to the land. If an action of trespass had been begun in justice’s court, and equivalent pleadings had been filed, the case must have been certified to the circuit court for trial for the reason that title to land was involved. Unless complainant owns the land there has been no trespass, no trespass is threatened, there is no injury, irreparable or other. The testimony produced is directed wholly to the question whether complainant, or defendant and his wife, owns the particular parcel of land. If complainant does not own the land, it is because defendant and his wife do own it. The contention of complainant’s counsel then amounts to this: If the court determines that complainant owns the land, defendant shall be enjoined from taking timber from it; if the court finds that complainant does not own the land and that defendant and his wife, jointly, do own it, the effect shall be merely a determination of title to the timber. This theory, it is clear, renders the allegation of the bill that complainant is in possession of the land entirely immaterial for the purpose of supporting equitable jurisdiction, especially so when it is considered that the wife of defendant is not brought upon the record. The case is [5] within the rule of Dolan v. Smith, 147 Mich. 276, and the decree dismissing the bill should be affirmed without prejudice to the rights of either claimant of the title to begin an action at law. Defendant will recover costs. Grant, O. J., and Blair, Montgomery, and Hooker, JJ., concurred.