Dunker v. The Field & Tule Club

Action to restrain defendant from trespassing upon certain land. Plaintiff had judgment, from which and from the order denying its motion for a new trial, defendant appeals.

The complaint avers: That on and prior to February 2, 1903, one McMaster was the owner of the land in question and that on said day plaintiff and MeMaster entered into a lease whereby the latter leased the said land to plaintiff for the term of five years from November 1, 1904, “for hunting

Defendant denies most of the material averments of the complaint and alleges that at all times mentioned in the complaint “defendant has been in the occupation, possession and enjoyment of the premises under a lease from the owner thereof and that the plaintiff has never at any time been in the quiet or peaceable possession or enjoyment of said leased premises, but has attempted at various times and on various occasions to interfere with the quiet or peaceable possession and enjoyment of defendant.”

The court found the facts substantially as averred in the complaint; also, that plaintiff entered into possession of the land on November 1, 1904, under his said lease, “and went upon said land and posted notices warning all persons not to trespass thereon; that said land is enclosed, and was leased for and is used for hunting purposes; that plaintiff has been and still is in possession of said leased land and occupying same for the purposes and under the conditions set out in said lease”; that “during the term of the lease defendant, its

It appeared that on February 2, 1903, the then owner of the land, McMaster, leased it to plaintiff to take effect November 1, 1904, the date of the expiration of the prior lease made by him; that on April 4, 1903, he sold the land to Goosen, who took with actual knowledge of plaintiff’s lease; that on November 1, 1904, plaintiff employed Goosen to post notices, signed by plaintiff, at several places on the land, which he did, reading: “Take Warning! No shooting. Trespassers will be prosecuted to the full extent of the law”; plaintiff did not go personally upon the land to take possession otherwise than in this manner, but sent Goosen, who testified to having posted these notices at plaintiff’s direction; he also testified that he notified defendant of plaintiff’s lease before it took effect, i. e., prior to November 1, 1904; by instructions of defendant’s president these notices were torn down and destroyed and defendants, through its officers and

Defendant contends for the following propositions:

1. Injunction is not the proper method to evict a person from the actual possession of land; 2. Injunction will not lie where its effect is to take possession from the defendant, if the complainant’s title has not been established by law; 3. Injunction will, not lie against a defendant claimed to be in the wrongful possession who is not doing irreparable dam

age, since the remedy at law by ejectment is ample and complete.

Kellogg v. King, 114 Cal. 378 , [ 55 Am. St. Rep. 74 , 46 Pac. 166 ], was a case quite similar to this and arose in the same county out of a lease of tule land for hunting purposes. The difference between the two cases is that in the case cited the plaintiff, as trustee of the shooting club, was in possession by keepers, while in the present case plaintiff was not in actual possession when he brought the action. He was, however, entitled to possession and had by his agent posted the notices above stated, of which defendant had knowledge and which it defied by tearing them down.

Among other principles established in Kellogg v. King, were the following: That an injunction will lie in favor of a trustee of a hunting club (and, of course, we may add, of the club itself if capable of suing) which has an exclusive right of hunting upon .a game preserve, under a lease from the owner; that it is not necessary to show title in fee, but that it is enough to show tona fide possession of the invaded premises under claim and color of right; that injunction may be invoked to restrain acts or threatened acts of trespass, in any instance, where such acts are, or may be, an irreparable damage to the particular species of property involved, and that the destruction of a hunting privilege, which is the very substance of the property right held under the lease, makes out a case of irreparable damage, which will sustain an injunction. It was further decided that injunction will also lie to prevent a multiplicity of actions where, as here, numerous persons are members of defendant club and are individually committing acts of trespass of a continuing nature by hunting upon the land, and where they threaten to continue such acts, in which case no adequate relief could be had at law by plaintiff without bringing suit against each individual. We can add nothing of value to the reasoning in that opinion. See Bishop v. Owens, 5 Cal. App. 83 , [ 89 Pac. 844 ), for a discussion of the equity jurisdiction to restrain trespass.

It seems to us that the only question in the present case not disposed of by Kellogg v. King is the one principally urged—namely, that injunction will not lie to enjoin the commission of a trespass when plaintiff is not in actual posses

In discussing the question it must be borne in mind that in Kellogg v. King the court held that “the property right which is here the subject of inquiry is of a peculiar and exceptional character” and that “the sole value of the invaded premises to the plaintiff is as a game preserve, by reason of its feature as a resort for wild game” which by the acts of defendant “is being taken from it, and its value largely, if not wholly, destroyed. ’ ’ And the court further held that this showing “makes out a case of irreparable damage from the destruction of the very substance of the property right which plaintiff holds under the lease.” We have before us the case of an injury, amounting to the destruction of the very substance of the property right under circumstances which, in the opinion of the court in the Kellogg case, make out a case of irreparable damage. The question, then, is not" whether the rule in ordinary cases applies, but whether the rule in this particular kind of a case is as claimed by defendant. Mr. Pomeroy, with his usual clearness, in his Equity Jurisprudence, volume 5, chapter XXIII, sections 493-511, shows how and when the English chancellors broke through the ancient rule that chancery refused to interfere and restrain any trespasser. He divides into four classes the many cases in which trespassers to realty are enjoined, where: 1. The legal remedy is inadequate because the injury is irreparable in its nature. 2. The legal remedy is inadequate because the trespass is continuous, or because repeated acts of wrong are done or threatened, although each of these acts, taken by itself, is not destructive. 3. Insolvency of the defendant. 4. The legal remedy is inadequate in a miscellaneous class of cases because the courts, for one reason or another, cannot give any or, at best, not accurately estimated or sufficient damages, though damages would be a perfectly adequate hind of remedy.

The essential features marking an injury as irreparable are: 1. That the injury is an act which is a serious change of, or is destructive to, the property it affects, either physi

The jurisdiction of equity to restrain continuous or re-' peated trespasses rests upon the ground of a repetition of similar actions, and this class of cases is comprehended in the broader jurisdiction of equity to prevent multiplicity of suits. This was one of the distinct grounds upon which the decision in Kellogg v. King was placed. Among the nonelassified cases is Watson v. Sutherland, 5 Wall. (U. S.) 74, where the court gave the following criterion of jurisdiction: “It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity.”

We come, then, to the specific question of a defendant, an admitted trespasser, in possession without right, with knowledge of plaintiff’s right, and acting in defiance of it. In the leading English case of Lowndes v. Bettle, 33 L. J. Ch. 451, it was said: “Where a defendant is in possession, and a plaintiff claiming possession seeks to restrain him from committing acts similar to those here complained of (cutting-timber, ornamental trees and shrubs, and sods), the court will not interfere unless, indeed (as in Neale v. Cripps, 4 Kay & J. 472) the acts amount to such flagrant instances of spoliation as to justify the court in departing from the general principle. . . . But where the person in possession seeks to restrain one who claims by an adverse title, the tendency of the court will be to grant the injunction, at least where the acts either do or may tend to the destruction of the estate.” Commenting upon the opinion in this ease and to the point that it seems to imply that the class of acts which lead to an injunction in the one case usually will have the same effect in the other, Mr. Pomeroy says (section 503) : “In other words, the fact of possession in the defendant is regarded as strong evidence of title in him, and the plaintiff must therefore make a stronger case to justify the interference with him. The logical effect of this reasoning is, that the plaintiff should be

To the point that equity will not enjoin a defendant in possession from the mere use of the premises (citing 5 Pomeroy’s Equity Jurisprudence, see. 504) a casual examination of the eases on which the text rests will show their inapplicability. Snyder v. Hopkins, 31 Kan. 557 , [ 3 Pac. 367 ], opinion by Brewer, justice, is a fair illustration of this fact. In enumerating the uses of a farm, in which the defendant should be permitted to continue undisturbed, the learned judge speaks only of such uses as pertain to the ordinary cultivation of the soil and the harvesting of crops, pasturing the land, and the like, and adds: “In short, he should be permitted to use the farm in an ordinary way, as such a farm is used, with the single limitation that he commit no waste, and make no substantial and injurious change in its condition. ’ ’

Trespassing sportsmen have, in a number of instances, felt the restraining hand of a court of equity. In Lamprey v. Dantz, 86 Minn. 317 , [ 90 N. W. 578 ], plaintiff was the owner of certain swamp land, the chief value of which was the shooting opportunities it offered. Defendant and his friends were in the habit of shooting on this land from a place of concealment on defendant’s land, thus interfering with the feeding, roosting and breeding of ducks, and impairing the value of plaintiff’s land. The court enjoined defendant from continuing this conduct. In Simpson v. Moorehead, 65 N. J. Eq. 623 , [ 56 Atl. 887 ], where the defendant intruded upon plaintiff’s tide land, it was held that the injury suffered by the owner, in lessening the quantity of game, increasing the danger of accidental shooting and interfering with his exclusive shooting rights, is not adequately remediable in damages. To like effect is Lembeck v. Nye, 47 Ohio St. 336 , [ 21 Am. St. Rep. 828 , 24 N. E. 686 ]. We quote from the syllabi: “Equity may be at once resorted to for appropriate relief where numerous acts of trespass are being committed and their continuance threatened under claim of right, and when the injury arising from each, act is trifling, and the damages

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on November 1, 1907.