
    Washington Special Term,
    February, 1849.
    
      Paige, Justice.
    Spear vs. Cutter.
    A court of equity will interfere to prevent injury to land, even where the title is in dispute, and the right is doubtful, if the waste or trespass will be attended by irreparable mischief, or if, from the irresponsibility of the defendant, or otherwise, the plaintiff cannot obtain relief at law.
    A court of equity will not sustain an injunction bill, filed merely to prevent the removal of timber wrongfully cut, or for an account for waste already committed ; as the plaintiff has an ample remedy at law, for such injury.
    But where the bill is filed to prevent future waste, and also to prevent the removal of timber already cut, or for'an account for waste already committed, the court, to avoid multiplicity of suits, will allow an account and satisfaction for what has been done; and where the mischief to the plaintiff will be irreparable, will also enjoin the defendant from removing the timber he has cut.
    In Equity. Demurrer to bill of complaint; and motion to dissolve injunction founded on the bill alone. The plaintiff alleged in his bill that he was the owner of lot No. 20 in Legg’s patent; that he and those under whom he claimed were in possession, claiming title, and had been from 1833 to April 28,1845; that for four years previous to this latter date, L. Bates occupied the lot as his tenant; that D. Russell, on the 11th of Nov. 1844, instituted summary proceedings under the provisions of the revised statutes in relation to landlords and tenants, before a county judge of Essex county, to recover possession of the lot, and succeeded in dispossessing Bates; that the plaintiff defended the suit. And the plaintiff further alleged that he had sued out a certiorari for the reversal of such proceedings; but that no argument or decision of the suit in the supreme court had been had. And he further stated, in his bill, that he had been advised by his counsel, that the affidavit on which the summary proceedings were founded, was not sufficient to give the county judge jurisdiction. The plaintiff further stated that one-half of the lot was uncultivated, and that its chief value consisted in the timber standing and growing thereon; that the defendant had committed waste by cutting down large quantities of such timber, which was then lying on said lot; and that unless he was restrained, he would continue to cut down such timber, whereby irreparable injury would be done to the premises; that the defendant was insolvent, &c. The plaintiff prayed for an injunction staying further waste, and restraining the defendant from removing or disposing of the timber already cut on the lot, &c.
    
      I. W. Thompson, for the plaintiff.
    
      C. L. Allen, for the defendant.
   Paige, J.

The defendant insists that as he is in possession, claiming adversely to the plaintiff, and as the title is in dispute, an injunction bill to stay waste cannot be sustained. Storms v. Mann, (4 John. Ch. 21,) is cited in support of this proposition. In that case, the defendant had been in possession of the premises a long time, and was in possession at the time of the filing of the bill; the plaintiff had commenced an ejectment at law, and the defendant had joined issue with him on the question of title, and the action was pending, undetermined. But in the bill in that case, there was no allegation of the insolvency of the defendant, or that the waste which he was committing would be an irreparable injury to the premises. In this case, as appears from the bill, which is conceded by the demurrer to be true, the plaintiff is the owner of the premises in question, and as such owner was in the quiet possession thereof from 1833 to the 11th of November, 1844, when D. Russell commenced summary proceedings for the recovery of the possession; and the defendant is committing waste by cutting down the standing timber, which will be an irreparable injury to the land; and' no remuneration for such injury can ever be recovered from the defendant, as he is wholly insolvent. Unless, therefore, the injunction is sustained, the plaintiff, in the event of his being restored to the possession by a writ of restitution, will be entirely remediless. If it was necessary at this time to pass upon the affidavit on which the summary proceedings were founded, I should have little hesitation in pronouncing it insufficient to give the county judge jurisdiction. It fails to show that the relation of landlord and tenant existed between Russell and Bates ; or even that Bates entered into possession under and by virtue of Russell’s title. If the county-judge did not acquire jurisdiction, the proceedings before him were entirely void; and the plaintiff’s tenant was illegally and improperly dispossessed. But, for the purpose of disposing of the demurrer, and the motion to dissolve the injunction, I do not think it necessary to decide the question as to the sufficiency of the affidavit on which the summary proceedings were founded.

Courts of equity originally declined to interfere by restraining waste or trespass where the right was doubtful, or the defendant was in possession claiming by an adverse title. (4 John. Ch. 22. Story's Eq. Jurisp. § 918.) But such courts have gradually enlarged their jurisdiction in such cases, and now they interfere to prevent injury to land, even where the title is in dispute and the right is doubtful, if the waste or trespass will be attended by irreparable mischief, or if, from the irresponsibility of the defendant, or otherwise, the plaintiff cannot obtain relief at law. (Id. §§ 910, 918, 928, and note 2. Hart v. Mayor, &c. of Albany, 3 Paige, 214. Winship v. Pitts, Id. 261. New-York Printing and Dying Estab. v. Fitch,1 Id. 99. Mitf. 137. Hawley v. Clowes, 2 John. Ch. 121. Hanson v. Gardner, 7 Ves. 310, 311. Thomas v. Oakley, 18 Id. 184. Livingston v. Livingston, 6 John. Ch. 497. Field v. Beaumont, 1 Swanst. 208.) The commission of waste, of every kind—such as the cutting of timber, pulling down houses, working of mines, &c. is now a very frequent ground for the exercise of the jurisdiction of courts of equity, by restraining the waste until the rights of the parties are determined. (Mitf. Pl. 137. Livingston v. Livingston, 6 John. Ch. 499, 500, and cases cited by Chancellor Kent.) The interference by injunction, in these cases, is placed upon, the ground of preventing irreparable mischief, and the destruction of the substance of the inheritance. In Livingston v. Livingston, (6 John. Ch. 497,) Chancellor Kent held that injunctions will be granted to prevent trespass, as well as to stay waste, where the mischief will be irreparable, and to prevent a multiplicity of suits. A court of equity wjll not sustain an injunction bill, filed merely to prevent the removal of timber wrongfully cut, or for an account for waste already committed; as the plaintiff has an ample remedy for such injury, at law. But where the bill is filed to prevent future waste, and also to prevent the removal of timber already cut, or for an account for waste already committed, the court, to avoid multiplicity of suits, will allow an account and satisfaction for what has been done, and where the mischief to the plaintiff will be irreparable, will also enjoin the defendant from removing the timber already cut. (Watson v. Hunter, 5 John. Ch. 168.) In this case, as the defendant is insolvent, the injury to the plaintiff will be irreparable if the defendant is permitted to remove or dispose of the timber he has already cut on the premises in question.

The plaintiff has no remedy under the revised statute's, (2 R. S. 336, § 18,) by an application to the supreme court for an order restraining the defendant from the commission of waste.

He has commenced no action for the recovery of the premises in question, to bring himself within the 18th section of the title relative to waste. (2 Id, 336.)

The motion to dissolve the injunction must be denied; and the defendant’s demurrer must be overruled, with leave to answer the bill in 40 days after notice of the order overruling the demurrer, on payment of costs.  