Shipley v. Ritter

Tuck, J.,

delivered the opinion of this court.

The doctrines of equity, applicable to cases like the one now before us, are so fully considered in the reported decisions of this court, and the authorities there referred to, that we deem a review of them altogether unnecessary. We consider it the settled law of this State, that although an injunction will not be granted to restrain a trespasser merely because he is a trespasser, yet equity will interfere where the injury is irreparable, or where full and adequate relief cannot be granted at law, or where the trespass goes to the destruction of the property as it had been held and enjoyed, or where it is necessary to prevent multiplicity of suits.

This power has been exerted to restrain the destruction of timber, ornamental and fruit trees, on the ground that these are cases of great and irremediable mischief, which damages could not compensate, because it reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed. White vs. Flanigain, 1 Md. Rep., 544 . Jerome vs. Ross, 7 Johns. Ch. Rep., 315 . According to Mr. Justice Story, (Vol. 2, sec. 928,) “ If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, they were extremely reluctant to interfere at all, even in regard to repeated trespasses. But now there is not the slightest hesitation, if the acts done, or threatened to be done to the property, would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed, courts of equity did not interfere in cases of this sort, there would be a great failure of justice in the country.” See, also, Amelung vs. Seekamp, 9 G. & J., 468 . Hamilton vs. Ely, 4 Gill, 34 . Canal Co. vs. Young, 3 Md. Rep., 480. Green vs. Keen, 4 Md. Rep., 98 .

*414 We do not understand the counsel to differ as to the principles governing cases of this description. The point of contest is, whether the present bill of complaint shows a state of facts entitling the appellant, who was the complainant below, to the relief he seeks ? In deciding this part of the controversy, little aid can be drawn from adjudged cases, as they rarely, if ever, present the same state of facts, and each must be considered with reference to the nature, character and condition of the property to be protected. 1 Md. Rep., 546 .

Unlike most of the cases referred to, there is no dispute here as to the facts on which the alleged equity rests. But the argument, on the part of the appellee, is, that the bill does not state a case to satisfy the conscience of the court that the charge and apprehension of irremediable injury is well founded, according to the cases of Amelung vs. Seekamp, 9 G. & J., 468 . Hamilton vs. Ely, 4 Gill, 34 . Upon this point, however, we think there is no reasonable ground for doubt. The averments admitted by the demurrer show, substantially, that the land belongs to the complainant, and is occupied by him as his dwelling plantation; that a portion of the estate was in timber, particularly valuable as such, as well as for the protection of the dwelling, besides being ornamental; that the defendants, without authority, have cleared part of that timber land, and converted it into waste and pasture land, and that they are continuing to cut down the timber, and to convert the rest of the timber land into waste and pasture land, destroying the forest trees that served to shelter his dwelling from the inclemency of the winter season, and to afford shade to his family in summer, depriving the owner of the use of all the timber on the farm by its utter destruction, to his great and irreparable damage, loss and injury. We see, by the bill, that the timber is of descriptions, though common to that section, particularly valuable and indispensable to farms in every part of the State; without which they cannot be worked, except at great and constantly recurring inconvenience and expense to the proprietors; and the whole of the timber land on this plantation is the subject of these continued acts. If *415 such grievances do not furnish a strong case of trespass, going to the destruction of the inheritance, where the mischief is remediless, 9 G. & J., 474 ; if they do not necessarily reach the very substance and value of the estate, and go to the destruction of it in the character in which it is enjoyed, 7 Johns. Ch. Rep., 315 ; if they do not impair the just enjoyment of the property, in future, as a dwelling plantation, 2 Story, 938 ; it is difficult to imagine a case of trespass in which equity should interfere. To deny relief under such circumstances, would be to declare that the destruction of all the timber on a farm, and the conversion of the land into waste and pasture land, thereby permanently injuring its value as at farm, and impairing the comfortable occupancy of the dwelling and out-houses, by removing shade and ornamental trees, is an ordinary trespass to be compensated in damages-at law, a position which we think cannot be maintained.

If the trees had been planted for shade or ornament, we suppose that, according to adjudged cases, the question would be too clear for argument. What difference, in principle, can there be between such trees and others so situated in reference to the dwelling as to afford the same convenience and enjoyment to the proprietor and his family? A man has a right to select his building site near to or in the midst of a wood, for the benefit of the protection afforded by the trees, with as just a claim, in equity, to have them preserved, as if they were costly exotics transplanted for shade or ornament only* The grievance is more to be complained of where the land is peculiarly valuable by reason of its standing timber, as essential-to its profitable enjoyment.

The jurisdiction of equity does not depend on'the worth of' the trees, merely as wood or timber, but on their location as part of an estate, rendering it more valuable by reason of the' uses to which they are or may be devoted, the destruction of which would materially impair the enjoyment of the property as held and occupied at the time of the trespass. It is true, that actions at law might be maintained, and exemplary damages, perhaps, would be awarded,, hut we hold,, that in such *416 cases there is something to be regarded beyond the mere pecuniary value of the trees, and the punishment of the trespasser by the verdict of a jury. The owner of property is entitled to be protected in its just and reasonable enjoyment, or to have full and complete remuneration for being disturbed therein; and whenever the court can see that the acts complained of are of a character necessarily to affect, permanently, such use, and do not admit of perfect pecuniary compensation;' that “the enjoyment of the estate will be so affected by the destruction of the trees, as to make the alleged damage irreparable,” 4 Md. Rep., 106 , it would be a denial of justice not to stay the hand of a destroyer, who, in pleading, admits himself to- be a wrong-doer, invading the possessions of another, and perpetrating acts of intolerable outrage on property to which he sets up no right, and has no pretence of title.

For these reasons we think that the decree of the court below, dismissing the bill, should be reversed, and the cause remanded, with liberty to the appellees to answer and have the case presented on its merits. Tolson vs. Tolson, 8 Gill, 376 . Whether the complainant will be entitled to the five pounds fine, under the act of 1785, ch. 72, sec. 28, will depend on subsequent proceedings in the court below.

Decree reversed and cause remanded, with costs of the appeal.

Eccleston, J., dissented.