
    NEWTON v. BROWN.
    (Filed March 22, 1904).
    
      INJUNCTION — Trespass.
    Where plaintiffs, suing to restrain defendants from cutting timber on certain lands, showed possession under color of title for thirty years, defendants claiming merely under an entry on the land as vacant, entitling them to a grant from the state, were not entitled to an injunction pendente lite restraining plaintiffs from cutting timber.
    ActioN by H. B. Newton and others against H. A. Brown and others, heard by Judge George II. Brown, at Chambers, December 21, 1903.
    From a judgment for the defendants the plaintiffs appealed.
    
      Rountree & Garr, J. D. Bellamy and R. G. Grady, for the plaintiffs.
    
      Iredell Meares and Franh D. Winston, for the defendants.
   ConnoR, J.

The plaintiff EL B. Newton alleges that he is the owner of a tract of land in Pender County containing more than 8,000 acres; that the plaintiff W. L. Parsley is the owner of all the timber twelve inches and upwards in diameter standing upon said land. That they and those under whom they claim have been for more than twenty-one years, and are now, in the open, notorious, adverse and exclusive possession of said land under known and visible boundaries. That the defendants have entered upon said lands “without any color of title, and unlawfully, wilfully, wantonly and maliciously cut around or belted several hundred cypress trees and left them in such a condition that they will die, etc., and that they threaten to continue and are continuing to cut, injure and destroy the timber standing on said land and to commit other trespasses thereupon, etc. They ask that the defendants be enjoined from continuing further trespasses, etc., for damages and other relief. The defendants deny the material allegations of the complaint, and for a further defense aver that the lands claimed by plaintiff, or the portion thereof in controversy, was, prior to January 1, 1903, vacant lands and title thereto was in the State. That on January 6, 1903, and on other dates named in the answer, certain entries were made which are fully set out in the answer — one of said entries being by J. W. Rowe afterwards transferred to II. A. Brown, Jr., another entry being made by II. A. Brown, Jr., and the third by defendant A. W. Taylor. They allege that in respect to the first entry the defendant II. A. Brown has perfected the same and is entitled to a grant therefor, and having paid the money to the Secretary of State for said grant is the equitable owner of the land described in said entry. With respect to the second entry, he has acquired an equitable interest therein. The same allegation is made in respect to the entry of A. W. Taylor. The defendants further say that, in respect to the last two entries named, the plaintiffs II. B. Newton and W. L. Parsley filed a protest, all of which is fully set forth in the record. They deny that the plaintiffs are the owners of the land because the same was public land prior to said entries. They allege that the plaintiffs are cutting timber and otherwise injuring the land to their damage. They further allege that the plaintiffs claim title to the land under a deed from L. A. Ilart and E. D. Hall to Jacob Roberts and O. L. AVoodworth dated November 30, 1810, and by intermediate deeds to plaintiffs. Defendants allege that the plaintiffs have had no possession under such general description, and that their possession is limited, if they have had any possession thereto, under certain deeds from one AATlley and others to said Hall bearing date of December 12, 1850, and tbat said deed only conveys portions of said land. Tbat tbe said Hart and others undertook to convey by tbe description set out in tbe complaint, and in doing so included some 9,000 acres of land, although by tbe conveyances to them they only acquired about 2,000 acres of tbat land, which has never been reduced to actual possession by tbe plaintiffs. In accordance with tbe prayer in tbe complaint, tbe Judge on October 12, 1903, made an order enjoining and restraining thfe defendants from cutting timber or otherwise trespassing upon tbe said lands. This order was made upon tbe complaint, certain deeds and affidavits introduced in evidence. Erom this order no appeal was taken. On November 9, 1903, bis Plonor Judge Brown issued notice to tbe plaintiffs to show cause why they should not be enjoined from committing * trespass on the land, and upon tbe return of tbe notice, and on reading tbe affidavits introduced by tbe plaintiffs and defendants, be made an order on December 21, 1903, continuing said injunction against tbe plaintiffs until tbe bearing of said order. His Honor recites as follows: “Tbe defendants have already been enjoined from cutting or removing timber from said lands at instance of the plaintiffs in this action. Tbe cause was submitted on written brief, affidavits and plats. Having considered tbe same, I am of opinion tbat tbe plaintiffs should be restrained pending this action. It is true tbat a considerable part of tbe land is claimed by defendants under entries. I am of opinion tbat they have acquired thereby, and by payment of tbe money to tbe State, such an equitable interest in tbe lands in controversy as should induce a court of equity to prevent tbe lands being-denuded until tbe title is settled, and this may be done independent of tbe Act of 1901, chapter 666. Tbe spirit and purpose of that act covers, I think, this case also. Let tbe defendants give bond in tbe sum of $1,000, with usual conditions, to indemnify plaintiffs, to be approved by tbe Clerk of Pender County Superior Court, and then let tbe injunction be continued until tbe final bearing.”

From tbis order the plaintiffs appealed. Tbe order made by bis Honor continuing tbe injunction against the defendants is based upon tbe finding that tbe plaintiffs have made out a prima facie title to tbe land in controversy. We think bis Honor is fully sustained by tbe deeds, affidavits and other exhibits filed before .him. Tbe only question presented by tbe appeal from tbe order restraining tbe plaintiffs from proceeding is whether tbe defendants have made out such a prima facie case as entitles them to tbe order made by bis Honor. Without discussing tbe conflicting affidavits in regard to tbe. boundaries of tbe several tracts of land in controversy, we think there is sufficient evidence, if believed, to show that tbe plaintiffs and those under whom they claim have been in possession of tbe land in controversy since 1870. If that be true, tbe State bad thereby become divested of its title by such possession and tbe land was not subject to entry. While it is true that an entry made in accordance with tbe statute confers upon tbe party, making it an equity to call for a grant upon paying tbe amount prescribed by tbe statute and otherwise conforming with tbe law, we do not think that be has such an interest in tbe land as of itself entitles him to interfere with tbe possession and use of tbe land by those who show a. possession for thirty years. Tbe entry is not based upon any declaration by tbe State or its officers that tbe land is vacant. It is, on tbe contrary, tbe simple statement by tbe person -making tbe entry that such land is vacant. He pays no money and assumes no obligation by making tbe entry. He acquires . nothing more than an option to complete bis entry and call for a grant. At tbe time that tbis action was brought and tbe pleadings filed, no grants were issued for either of tbe tracts of land in controversy. On November 18, 1903, a grant was issued by the' State for the tract of land entered on January 6, 1903, containing 500 acres. In State v. Bevers, 86 N. C., 588, Ruffin, C. J., says: “It is notorious that grants are always issued at the instance of the grantee, and upon his suggestion that the land is vacant. The State does not warrant it to be so, or the liability of the land to entry. Nor is it any fraud in the State to grant land that is not so liable.” We cannot think that one who simply declares that a body of land is vacant and thereupon proceeds to lay an entry, acquires such an interest as entitles him to interfere by injunction with the possession of one who is found to be in possession. If he shall follow his entry by taking out a grant and paying his money, he has an adequate remedy to sue the person in possession upon his grant.

It will be observed that his Honor does not base his order upon a finding of facts required by chapter 666 of the Laws of 1901, but says expressly that, independent of the statute, the defendant is entitled to the injunction. It will be well to consider the case as if the defendants had brought the action asking the Court to restrain the plaintiffs from cutting the timber from the land until they could perfect the entries by obtaining grants from the State and prosecuting their action for the recovery of the land. Their asserted right to affirmative relief is brought forward in the nature of a cross-bill or, in the language of The Code, a counter-claim. Their right to do so is recognized in Lumber Co. v. Wallace, 93 N. C., 22. When the defendant relies upon a counterclaim and demands affirmative relief, he becomes in that respect an actor, and takes upon himself the burden of proof as if he were the plaintiff. Viewed from this standpoint, in the light of all the testimony, the plaintiffs are in the possession of certain lands, the boundaries of which are uncertain and in controversy; tbe defendants alleging that they are cutting timber beyond the boundaries covered by their deeds on lands belonging to the State; that they have made entries upon a portion of the lands and thereby acquired an equity to call upon the State for grants by complying with the statute. The plaintiffs set up 'deeds which they claim cover the lands in controversy and assert possession since 1870. We do not think that the defendants would, in this view, be entitled to an injunction to restrain Newton and Parsley from cutting the timber. It is settled by the uniform decisions of this Court that an entry of lands creates an “inchoate equity” in them, which entitles the enterer, upon payment of the amount fixed by the statute, to a grant. No case is cited in the defendants’ well-prepared brief in which an action for any purpose has been sustained before the issuance of the grant. This Court has expressly held in Hall v. Hollifield, 76 N. C., 476, that “The public lands of the State are open to entry by any of its citizens, and the first declaration of intention is made on the books of the entry taker in the county where the land lies, and this gives priority, called a pre-emption right. No estate or interest in the land is thereby acquired. No consideration is paid and none of the requisites for that purpose are performed, but simply the right to be preferred when the money is paid and the other formalities required by the statute are complied with.” That the Court will by injunction protect the owner of an equitable estate from waste cannot be questioned. Whether one having “an inchoate equity,” or a bare right to call for a grant from the State, will be permitted to enjoin the person in possession from using the land for the purpose for which it is fit, is an entirely different question. We find no case in this State in which the Court recognized the right of an enterer to maintain an action for any purpose. Brem v. Houck, 101 N. C., 627, is ail express authority that he cannot have injunctive relief against the issuing of a grant to another person. Courts of equity, prior to 1855, were very slow to interfere by injunction with the use and enjoyment of land by those in possession, and declined to do so unless the plaintiff had established, or was seeking in the law courts to establish, his legal title. It ivas necessary to allege and show that irreparable injury was threatened. Usually it was necessary to show insolvency. Lyerly v. Wheeler, 45 N. C., 267, 59 Am. Dec., 596; Thompson v. Williams, 54 N. C., 176; Bogey v. Shute, 54 N. C., 180 (S. C., 57 N. C., 174); Thompson v. McNair, 62 N. C., 121. At the session of 1885 (chapter 401) an act was passed declaring that “It shall not be necessary to allege the insolvency of the defendant,” etc. The language of Merrimon, J., in Lumber Co. v. Wallace, supra, is peculiarly appropriate to this case: “While we are of the opinion that the defendants are entitled to relief, we think that the plaintiffs ought not to be restrained from cutting, using or selling timber until the action shall be heard upon its merits. No special or peculiar cause is alleged why the timber may not be cut and sold. This is not a case wherein a party aggrieved alleged irreparable injury. We can see no adequate reason why the defendants, if they succeed in this action, may not be fully compensated in damages if adequate means shall be afforded them for ascertaining the reasonable value of the timber. This may be done. It is against the policy of the law to restrain industries and such enterprises as tend to develop the country and its resources. It ought not to be done unless in extreme cases, and this is not one.” Lewis v. Lumber Co., 99 N. C., 11, in which it is said: “It appears that the defendant is cutting and carrying away from the land ordinary forest timber suited to the purpose of marketing lumber for the markets. Obviously, the plaintiffs may be compensated in damages for tbis timber.” To tbe suggestion that tbe land covered by tbe defendants’ entries is included in tbe Wheaton grant of 1795, and that tbe deed of tbe Sheriff to the State under a tax sale vests tbe title in tbe Board of Education, and is therefore not subject of entry, it is sufficient to say that it is not necessary that we should express any opinion. It is worthy of consideration, at tbe proper time, whether lands thus granted by tbe State and purchased for delinquent taxes come within tbe terms “vacant and unappropriated lands belonging to the State.” Ruffin, J., in State v. Bevers, supra, says that they were subject to entry, but that by tbe act of 1872 they were ceded to tbe Board of Education. Tbe affidavits tend to show that the lands in controversy are covered by tbe Wbeaton grant. Upon tbe whole record we think that bis Honor should not have restrained tbe plaintiffs. Because tbe Court will enjoin at tbe instance of one in possession a continuous and highly injurious trespass by one having an “inchoate equity” not based upon anything more than bis “laying an entry,” it does not follow that it will at bis instance interfere with tbe use and possession of one who has made out a prima facie case of a possession under color of title for more than thirty years. If tbe defendants are so advised, they may move tbe Court to require tbe plaintiffs to file a bond to indemnify them against loss by cutting tbe timber if they shall finally make good their intention. It will be within tbe sound discretion of tbe Judge to make such orders in that respect as be may deem to be proper. Tbe injunction order appealed from should be vacated. Let tbis opinion be certified to tbe Superior Court of Pender County.

Error.  