
    Gaines vs Leslie.
    Opinion delivered September 19, 1896.
    
      Forcible Entry and Detainer — Injunction to Restrain Waste.
    
    In an action in ejectment and injunction pendente lite would sue to restrain the defendant from cutting timber, plow pasture land or otherwise injuring same where the plain proves title to the land, that the defendant is insolvent, ; would suffer irreparable injury unless the defendant be restrained.
    Appeal from the United States Court for the Sou ern District.
    C. B. Kilgore, Judge.
    W. J. Leslie brought an action in ejectment agai Henry Gaines and asked for injunction against defend pendente lite. Judgment granting the injunction. De: dant appeals.
    Affirmed.
    The appellee, W. J. Leslie, brought his actioi ejectment against the appellant, Henry Gaines, in the cd below, and in the same action prayed for and injunction | straining appellant from cutting timber off the land in troversy, and from breaking up the land in controve| pending said suit in ejectment. The cause was referred the master in chancery. The master reported, recomm^ ing the granting of the writ of injunction prayed for. appellant filed his motion, setting out that the applica| for injunction was improperly joined with the actior ejectment, and asked a severance of said actions, which tion was overruled by the court. The appellant demuj to appellee’s application for injunction for insufficient all« ons of equity, which, was overruled by the court. Appell-lt excepted to the report of the master, which exceptions ere overruled, and the report confirmed, and the writ of in-nction granted as prayed for. Appellant excepted to all of e orders made by the court, prayed an appeal, and brought e cause to this court on appeal. ’
    
      Robt. H. West, for appellant.
    1. The trial of the title to the land in controversy, nts, profits, and damages are properly joined and consti-fce an action at law to be tried and determined by a jury, íe application for an injunction pending the action at law, purely equitable and must be determined by the court prior the trial of the case at law. Harris vs Townsend, 52 Ark. 1. Newman Pleadings and Prac. § § 239, 240. The two fcions being different, one being legal and the other equit-le, cannot be brought in the same kind of a proceeding d hence cannot be joined in the same action. Mayo vs Her, 4 Cal. 27.-
    2. An injunction will noli be allowed where it does not pear that the injury will be destructive to the estate of in-ritance or productive of irreparable mischief, nor will re allegations of irreparable injury suffice. The facts :st be shown which go to constitute the injury alleged to irreparable. High on Injunctions § 651, pp. 505, 506. nding an actiop. of ejectment to try the title, Defendant .1 not be restrained from using the land in the ordinary irse of agriculture, and clear it of timber, and erect build's for that purpose. High on Injunctions, § 654. When injunction is sought against the cutting of timber, it must Dear that the trees are of peculiar value or of great im-■tance to the estate as fruit or ornamental trees and incase ¡imber it must appear that its destruction would result in irreparable damage to the estate. 673, 676. High on Injunctions
    
      Johnson, Cruce & Cruce, for appellee.
    No brief is on file for appellee.
   Springer, C. J.

(after stating the facts.) This is | suit in ejectment. The plaintiff alleges in his complaint tha he is the owner and entitled to the possession of certail property, which is described; that he is an Indian by blood and has been in the uninterrupted possession of the proper'll for six years prior to the 4th day of January, 1896; that that day he was ousted from the possession of said premisel and the possession of the same was turned over to the d| fendant, under writ issued out of the United States Court f<| the Southern district of the Indian Territory, at Ardmore, the case No. 1,234, entitled “Henry Gaines vs John Selsor| that he (the plaintiff in' the case at bar) was not a party the suit between Gaines and Selsor, was never served wij any notice of the same, and had nothing to do with it; thl the defendant, Gaines, his agents and employes, are cuttiij timber on the land, and are plowing up the same, and stroying the pasture lands, and that he will suffer irreparat injury unless the defendant, his agents and employes, restrained from further wasting said land and timber; thl the defendant is hopelessly insolvent, and unable to respol to him in damages, and that the plaintiff has no adequa and speedy remedy at law to enforce his rights, and th| unless an injunction is granted, he will suffer irreparable : jury; that the land in controversy was not embraced in writ that issued in cause No. 1,234, nor was it embraced! the suit in said cause. The defendant, in his answer, stalj that he was placed in possession of the premises in contrc ersy under the writ issued in case No. 1,234; that Selsor ■ íe owner of the property, and was the first to improve the ime. The master to whom the case was referred states in is report that the proof taken by him showed that the de-ndant, Gaines, never made any claim to the property in mtroversy until lie was pub in possession of the same on the ;h day of January, 1896, under a writ issued in cause No. 234; that the premises were not in litigation in said cause, d were not embraced in the pleadings nor in the judgment tered therein, nor in the writ of possession, and that the [ficer in executing the writ wrongfully ousted the plaintiff |om the possession and put the defendant in pos-ssion; that the plaintiff Leslie, in the case at bar, foves his title to the property in controversy, and at his ownership dates back to a period of six years; that e defendant, Gaines, is insolvent, and unable to respond to ¡e plaintiff in damages; that the land is pasture land, and jat the defendant, his agents and employes, are breaking the d, and destroying it as pasture land. The master, in his ort, giving his conclusions as to the law of the case, tes the rule correctly. In actions to try the title to pro-rty, where the title is in issue, courts of equity will not erf ere to restrain or enjoin acts of the defendant pending litigation, except in extraordinary cases. But in cases ere the defendant is insolvent, and cannot respond in |mages in an action at law, where the plaintiff proves title the land, and that he would suffer irreparable injury, .rts of equity will issue injunctions or restraining orders actions of ejectment. High, Inj. § § 677, 701, 717, and 10 .. & Eng. Enc. Law, p. 824. The defendant filed excep-|ns to the master’s report, which were overruled, and the ort was confirmed, and an injunction was granted by the rt against the defendant, his ageuts and employes, rest-|ning them, and each of them, from cutting timber, from wing the pasture land, or in anywise injuring the plain - s interests in the land described in the plaintiff’s complaint. From this judgment of the court below the appellai appeals to this court.

Forcible entry and detainer. Injunction allowed when?

It appears from the evidence in this case that the a; pellant obtained possession of the land or premises in co: troversy through a blunder or mistake of a deputy marshs who, having a writ of possession for another piece of lan inadvertently or otherwise put the appellant in possession a tract of land to which he had never previously made claim, and upon which he had made no improvements, ai which he had no right or title whatever. The court b< might very properly have adopted a more summary mear disposing of this unconscionable claimant by issuing an o in cause No. 1,234, directing the marshal to correct his take by dispossessing the appellant and putting the app< again in possession of the premises to which he was entil But no application-was made for an order of this kind, judgment of the court below is affirmed.

Lewis, J., concurs.  