Stevens v. Beekman — 1 Johns. Ch. 318

Majority

p. 318

Stevens against Beekman and others.

October 19th.

Headnote

An injunction is not allowed, in order to prevent th^jepetition of a trespass, in entering and cutting down timber, on land of which the plaintiff is in possession as owner, and has adequate remedy at law for the trespass.

Though, it seems, an injunction may be allowed in a case of trespass, under very special circumstances.

MOTION for an injunction on a bill, stating that the plaintiff, on the 20th of March, 1806, purchased by deed, in fee, for a valuable consideration, of Jacob Glen, certain lands therein described, in the county of Saratoga, and adjoining Glen's Falls. That before the purchase, the plaintiff, for 20 years and upwards, had been in the quiet possession ofthe greater part of the premises, as tenant to Glen, and of the residue for about 3 or 4 years. That Glen had good right and title to sell. That the plaintiff had continued, and still was in possession as owner. That about 3 or 4 years ago, the defendant (Beekman) brought an action of ejectment against the plaintiff, for the south or west part of the premises, and which suit had never been brought to trial. That Beekman had no title. That the other two defendants, /. and G. Lumnendall, deriving, or pretending to derive, a title under Beekman, had entered on the premises, and cut down timber, and taken it away, withoutpermission;

p. 319

and that the part of the premises on which such waste was committed, was principally, if not exclusively, valuable on account of the timber. That the two other defendants were still continuing to commit waste on the premises, and the plaintiff was apprehensive thatthe dt fendants would continue to do so, unless restrained by this court. The plaintiff, therefore, prayed for an injunction against a'repetition of the trespass, and that the defendants may account for the timber already cut.

The bill was sworn to, and with an accompanying affidavit, that the two last defendants were poor.

J. V. JY Yates and Burr, for the plaintiff

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.

I doubt, exceedingly, whether this extension of the ordinary jurisdiction of the court would be productive of public convenience. Such cases áre generally cf local cognizance;, and drawing them into this court would be very expensive, and otherwise inconvenient. Lord Eldon said, that there was no instance of an injunction in trespass, until a case before Lord Thurlow, relative to a mine, and which was a case approaching very nearly to waste, and where there was no dispute about the right. Lord Thurlow had great difficulty as to injunctions for trespass; and though Lord Eldon thought it surprising that the jurisdiction by injunction was taken so freely in waste, and not in trespass, yet he proceed- ■ ed with the utmost caution and diffidence, and only allowed the writ in solitary cases of a special nature, and where irreparable damage might be the consequence, if the act con-

p. 320

tinned. It has also been allowed in cases where the trespass had grown into a nuisance, or where the principle of multiplicity of suits among numerous claimants was applica- „ ble. (Mitchell v. Dors, 6 Ves. 147. Hansen v. Gard iner, 7 Ves. 305. Smith v. Collyer, 8 Ves. 89.) There is the less necessity for the interference of this court, since the statute (N. R. L. vol. 1. 525.) makes the cutting down timber a misdemeanor punishable by fine and imprisonment, and also gives the party injured treble damages. There is nothing in this case so special and peculiar as to call for this particular relief, and especially, when I am not justified by any established practice and precedent.

Motion denied.