Majority
p. 528SMITH et als v. WILSON.
Headnote
Where the complaint and evidence show that a defendant is in possession of a tract of land, and claiming and holding under an adverse title, and the weight of evidence is in favor of bis title, an injunction will not be granted, on the application of a party claiming title to the land, to prevent the defendant from cutting timber thereon.Appeal from the District Court of the Seventh Judicial District, County of Contra Costa.
J. F. Williams for Appellants.
Crockett and Crittenden for Respondent.
Field, J., concurring.
Appeal from an order dissolving an injunction.
In this case, the answer and accompanying affidavit on which the motion was heard, show that defendant was in possession of the land in question, claiming and holding under an adverse ti-
p. 529
tie, and the weight of evidence contained in the affidavits on both sides being in favor of the title under which he holds, the injunction was properly dissolved. (Eden on Injunction, 231, and note; 1 How. Miss., 108.)
Judgment affirmed.