FLAMANG'S CASE. 7 Ves. 308, cited by Eldon. “Lord Thurlow hadice inseparable great difficulty as to trespass. I have a note of a remarkable case, "domage in dring.. in which the name of one of the parties was Flamang. Ame the soupe There was a demise of close A to a tenant for life; the lessor being landlord of an chas abovegrout & adjoining close, B. The tenant dug a mine in the former close. That injunction was waste from the privity. But when we asked an injunction against PILLSWORTH V. HOPTON, 6 Ves. 51 (1801). Motion for injunctionction refued to restrain waste. The defendant was in possession; the tenants had when the stored Arattored; and the plaintiff had failed in an ejectment, but, the bill Delvineda title. alleged, not upon the merits. Both parties claimed title. ELDON, C.: adaise to his. "I do not recollect that the court has ever granted an injunction against MITCHELL V. DORS, 6 Ves. 147 (1801). Motion for injunction against "" Coal from pa refund when SMITH V. COLLYER, 8 Ves. 89 (1803). Motion to restrain the cutting by refe of timber. The plaintiffs claimed as residuary devisees of mortgaged dashine. lands, the defendant as heir, insisting that the will was invalid. ELDON, till esas. C.: "I do recollect any instance of this sort. The defendant denies olid undre that the plaintiffs are devisees. It is not waste but trespass upon their which Pelaima own showing. There was no instance of an injunction in trespass till the case before Lord Thurlow upon a mine, to which I have alluded, which, though trespass, was very near waste. In that case, the first instance of granting an injunction in trespass, there was no dispute whatsoever about the right. Here the right is disputed." 2 land-by grated-to-he not trespasser COURTHOPE V. MAPPLESDEN, 10 Ves. 290 (1804). Motion by a land: lord to restrain a trespasser from cutting and removing timber; charg-clusion with ing collusion with the tenant. ELDON, C.: "I have no difficulty in granting the injunction in this case, but I will not be bound as to what 1 Norway v. Rowe, 19 Ves. 144, 147; see also Powers v. Heery, R. M. Charlt. (Ga.) 523; Storm v. Mann, 4 Johns. Ch. 21. AMES. Hanson v. Gardiner, 7 Ves. 305. 2 In Lowther v. Stamper, 3 Atk. 496 (1747), Lord Hardwicke denied a motion for injunction to restrain, until the hearing, the digging of mines, because the defendant denied plaintiff's title. But in Commissioners v. Blackett, 12 Jur. 151 (1848), Shadwell, V. C., under similar circumstances, granted a temporary injunction against working mines. AMES. in tenoset from Timber. & cutting imber is to be done upon a mere trespass, though it is strange that there cannot be an injunction in that case to prevent irreparable mischief: the rather, as there is a writ at common law to prevent the farther commission of waste during the trial; whereas, if the court will not interfere against a trespasser, he may go on by repeated acts of damage, perfectly irreparable. But the ground in this case is that the trespass partakes of the nature of waste more than in general cases, the tenant colluding; and if the tenant's act is waste, the act of the other must have so much of the quality of the tenant's act as to make it the object of an injunction." Title disputed. مهمده to p where I had not be KINDER V. JONES, 17 Ves. 110 (1810). Motion on affidavit to given noliku enjoin the cutting of trees, extremely ornamental to the plaintiffs' Theen gives notice mansion-house and park. They grew in a lane alleged to belong to the but didn't appear. plaintiffs, but claimed by the defendant as part of the waste of his manor. ELDON, C., finding, on inquiry, that the defendant had not been served with notice of this motion, said that he must certainly be served with notice in such a case; and expressed some doubt whether the court had ever granted an injunction in the case of trespass, where the title was disputed. Notice was served; the motion was renewed before GRANT, M. R.; and the defendant not appearing, was granted. Iny and account gaher for. Rock tokie THOMAS v. OAKLEY, 18 Ves. 184 (1811). The plaintiff owned a It's lond but love quarry, from which the defendant had a right to take stone for a part hand of D's off of his estate. He had taken it for use upon other parts. The bill prefentan action prayed injunction and account; demurrer. ELDON, C.: "Is there any Any fronted. atlow account distinction between this case and that of a coal mine? Is not this by. Duwas granted taking away the very substance of the estate just as much as in the case of a coal mine? After the decisions, that have taken place, this demurrer cannot be maintained. . . . That is trespass beyond all doubt, and not waste; as there is no such privity between the parties as would make it waste. . . . Throughout Lord Hardwicke's time, and down to that of Lord Thurlow, the distinction between waste and trespass was acknowledged; and I have frequently alluded to the case, upon which Lord Thurlow first hesitated . . .; 1 but I take it that Lord Thurlow changed his opinion upon that, holding that, if the defendant was taking the substance of the inheritance, the liberty of bringing an action was not all the relief to which in equity he was entitled. The interference of the court is to prevent your removing that which is his estate. Upon that principle Lord Thurlow granted the injunction as to both. That has since been repeatedly followed; and whether it was trespass under the color of another's right actually existing, or not. If this protection would be granted in the case of timber, coals, or lead ore, why is it not equally to be applied to a quarry? The comparative value cannot be considered. The present established course is to sustain a bill for the purpose of injunction, connecting it with the account in both cases; and not to put the plaintiff to come here for an injunction, and to go to law for damages." Demurrer overruled.2 1 Flamang's case, supra. 2 Cowper v. Baker, 17 Ves. 128; Grey v. Northumberland, 17 Ves. 281, 13 Ves. 236, accord. AMES. Cf. Lord Eldon's action in these early trespass cases with the characterization of him in Bagehot's essay, "The First Edinburgh Reviewers." asa mindlamar, and as a tort. STEVENS v. BEEKMAN, 1 Johns. Ch. 318 (1814). Injunction against at goot forts; the cutting of timber denied. KENT, 3. The plaintif is in against by grefurl for sion, and has adequate and complete remedy at law. This is not cutting timber, P a case of the usual application of jurisdiction by injunction; and if the implos. Remidy precedent were once set, it would lead to a revolution in practice, for at low adequate 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 are generally of local cognizance; and drawing them into this court would be very expensive, and otherwise inconvenient. . . . There is the less necessity for the interference of this court, since the statute makes the cutting down timber a misdemeanor punishable by fine and imprisonment, and also gives the party injured treble damages." 1 HAIGH v. JAGGAR, 2 Colly. 231 (1843). In denying an injunction-fured Pagring against the working of a coal-mine, partly because of laches, KNIGHT Diffon taking Cool BRUCE, V. C., said: "Whether the law of the country, in its actual condi- rome even tion, provides for the protection of property in litigation, pending that' litigation, as completely or effectually as in the present state and habits of the loud. Dis doing of society is sufficient for general convenience . in minerlik 1 and to desphing hting to tok use of lowe e of landfrom it is not necessary for some me to intimate any opinion. . . . It is, I think, certainly true that the Court of Chancery does not treat questions of destructive damage to a property now exactly as it did forty or fifty years back-that its protec-hm. tion in such respects is more largely afforded than it then generally was... "The defendants, who claim a right to do what they are doing, are, it is true, by working the coal, taking away the very substance of the property; which may in a sense be perhaps called in this case, and might in others most certainly be, waste or destruction; but, on the other hand, it is the only mode in which the property in question can be usefully enjoyed or made available and may, therefore, in a sense perhaps be deemed not more than taking the ordinary usufruct of the thing in dispute; nor is unskilful or unminerlike working established against the defendants to my satisfaction, nor are they said to be insolvent." Enjoine TALBOT V. HOPE SCOTT, 4 K. & J. 96, 112 (1858). WOOD, V. C.. Din poss The ground of the rule, that one in possession will not be enjoined until the plaintiff has established his right to possession at law, is, "that the court cannot interfere with a legal title of any description unless there be some equity by which it can affect the conscience of the defendant... Where there is an entire want of privity between the plaintiff and thes defendant, and the defendant is simply a wrongdoer at law, this court does not take upon itself to interpose, unless in certain very exceptional cases." Iz igrosted whens NEALE v. CRIPPS, 4 K. & J. 472 (1858). The parties each claimed flexto es as heir of the deceased owner. The plaintiff had begun an action of ri ejectment against the defendants' tenant. Bill to restrain cutting of timber. The plaintiff's counsel filed an affidavit of cutting, and moved her. 1 Jerome v. Ross, 7 Johns. Ch. 315, 330 (1823) accord. This was the D'stimont was last case decided by Kent. Contra, Duvall v. Waters, 1 Bland Ch. (Md.) Cretting timber. 569 (1827). cutting ex parte for an injunction. After serving notice of the motion and undertaking to be answerable for damages, the defendants not having appeared, he was granted an injunction by WOOD, V. C., until the hearing or further order.1 Preceived from his father who receive from Tis will in the not be hive at lado and - keeprep his rights he threatened to But Petrus & turf. Preceived a temp wing and now ashofera permonent and. D to -to 4. Rishould be given the pert. ing. becouse LOWNDES v. BETTLE. CHANCERY, 1864. Puas in peaks and the threatened spoliation [3 New Reports, 409.]2 to do not favor. to granted. comuld be a destructions TESTATOR in 1768 devised his estate to his heir-at-law, but if to a part of the no heir-at-law could be found, he declared that William Lowndes inheritance veokich should be his heir. The testator died in 1772; and in 1773 William Lowndes filed a bill to have his right so ascertained. No heir-atlaw could be found, and in 1783 a decree was made establishing the will, and declaring that the estate was to be considered as belonging to William Lowndes, and that he was to be put in possession. The estate continued in this family ever since, and the plaintiff was one of his descendants, and the present owner. The defendant claimed to be heir-at-law of the testator, and in September, 1861, and since, had sent notices to the plaintiff threatening to come on the estate, and to cut trees and turf, in order, as he said, to keep up his rights, and to bar the Statute of Limitations. On a motion for an interim injunction the defendant did not appear, and the injunction was granted; the case now came on to have the injunction made perpetual. KINDERSLEY, V. C., said that from Lord Thurlow's time to the present a continual change had been taking place in the course of the court with regard to injunctions to restrain spoliation. There had been formerly a wide distinction between waste, or spoliation, by one having privity of title, and trepass or spoliation by one claiming adversely, or making no claim whatever. This distinction had been much lessened, but still existed. There was also a distinction as to whether the court was supporting possession or interfering with it. The cases might be conveniently arranged under two heads: namely, where the plaintiff out of possession sought to restrain the defendant in possession; and where the plaintiff in possession sought to restrain the defendant out of possession. Cases under the first head might again be divided into cases where the plaintiff claimed privity of title, and cases where the plaintiff claimed adversely. Cases under the second head might also be divided into cases in which the defendant claimed no title and cases where the defendant did claim title. 1 The early English and American cases are collected in 11 Am. Dec. 498; 99 Am. St. Rep. 731; 1 Am. & Eng. Dec. in Eq. 80. See also notes to West v. Walker, 2 Gr. Ch. (N. J.) 279 (1835). 2 33 L. J. Ch. N. s. 51, 10 Jur. N. s. 226, s. c. First. Where the plaintiff being out of possession sought to restrain the defendant in possession, and claimed privity of title. This was waste, and in such cases the courts never had any difficulty in granting injunctions. Secondly. Where the plaintiff being out of possession sought to restrain the defendant in possession, and claimed adversely. The earliest case was Hamilton v. Worsefold,1 before Lord Thurlow, in 1786, in which an injunction was granted, but this case could not be relied on, as it was doubtful whether there was no collusion with the tenants, and therefore waste properly so called. In Pillsworth v. Hopton, Lord Eldon refused an injunction, but in Crockford v. Alexander, 15 Ves. 138, in 1808, while granting an injunction under the peculiar circumstances of the case, he drew a distinction between trespass and waste. In Jones v. Jones, 3 Mer. 161, in 1817, Sir William Grant said that he did not see any very good reason why the court should not protect real estate pending a suit, but nevertheless refused an injunction partly on the ground of delay. In Haigh v. Jaggar, in 1845, Sir J. L. Knight Bruce said. that he was not convinced that the court could not restrain the party in possession from stripping the estate of its timber, pulling down the manor-house, &c., for this court did not treat questions of destructive damage to property then exactly as it did forty or fifty years before. The injunction, however, was refused partly on the ground of delay. In Davenport v. Davenport, 7 Hare 217, in 1849, Sir James Wigram allowed a demurrer, for want of equity, to a bill praying an injunction, and stated that the cases in which the jurisdiction was exercised in restraining trespass were cases of peculiar description, and that the court was always trying to get out of a technical rule. He, however, expressed his surprise that the law should be in that state. And finally Sir W. P. Wood, in Neale v. Cripps, in 1858, granted an injunction to restrain the defendants in possession from stripping an estate of timber, upon a motion by a plaintiff claiming under a title at law. His honor also referred to Earl of Fingal v. Blake, 2 Moll. 50 and Lloyd v. Lord Trimleston, 2 Moll. 81. Thirdly. Where the plaintiff in possession sought to restrain the defendant out of possession, the defendant claiming no title. In Mogg v. Mogg, in 1789, and Mortimer v. Cottrell, an injunction was refused; but in Mitchell v. Dors, in 1801, Lord Eldon granted. an injunction to restrain the owner of an adjoining coal mine from working into the plaintiff's land; and in Courthope v. Mapplesden, Lord Eldon granted an injunction to restrain cutting timber; but here there was collusion with a tenant, and the decision was without prejudice to the case of a mere trespass. However, in Cowper 1 The cases discussed below have been abstracted in the preceding Note on the Early History of Trespass, except where citations are given in the text. |