
    Wm. Kinsler and Others v. Isom Clarke.
    Injunction granted to restrain defendant, pending an action to try titles, from committing waste by cutting and carrying off the timber, where the chief value of the land consisted in the timber, and it appeared more than probable that defendant would not be able to pay the damages which might be recovered. [*618]
    On an application for an injunction, the plaintiff may read affidavits filed before the coming of the answer in support of the bill, or in contradiction to the answer : but no affidavits filed subsequently to the coming in of the answer can be read. [*620]
    Before Chancellor Johnson, Lexington, July, 1836.
    The bill in this case was filed for an injunction to restrain the defendant from committing waste in cutting down and carrying off the timber from the land in question, pending an action of trespass to buy titles at law, by the plaintiffs against the defendant — alleging that the chief value of the premises, by reason of its vicinity to Columbia, consisted in the timber; and that the defendant is fast dissipating his property, and will not be able to satisfy the damages which the plaintiffs may recover.
    The defendant, in his answer, admits the alleged waste, but insists that he has a perfect, legal and equitable title to the premises; and sets it out.
    The Chancellor, in his decree, discusses the question of right to r*g^g *the premises, and decides it in favor of the plaintiffs. But as the *- Court of Appeals refused to express any opinion on that question, it is unnecessary to state the facts connected with it, and the Chancellor’s reasoning thereon. In relation to the application for an injunction, the decree proceeds as follows :
    An action at law is the common and legitimate remedy for a trespass, when the party injured may be remunerated in damages to the extent of the injury sustained. Retributive justice does not, however, always furnish an adequate remedy : the trespass may be of such a nature, that the extent of the injury cannot be ascertained by any rule : as in the common case of working a mine. And the Courts of Chancery have interposed a preventive justice in those cases in which, from their nature, damages might prove an uncertain or inadequate remuneration, by restraining the wrong doer from a continuation of the trespass. An injunction to stay waste, is a process in ordinary use, and although the doctrine was originally broached with great caution, and proceeded on with great circumspection, injunctions to restrain trespass when irreparable mischief would be effected before atrial at law could be had, are now regarded with more favor. Tide Eden on Injunctions, 138, et seq. Shubrick v. Guerard, 2 Eq. Rep. 619, note; 1 Eonb. Eq. 32, 33, notes. And in reviewing the cases on this subject, I confess, I feel some surprise that they have advanced in favor thus far at so tardy a pace. It is true that the title to a freehold, is a subject which exclusively belongs to the jurisdiction of the law Courts, but Chancery utterly disclaims the right to interfere when the title is in dispute, whether it refer to the factum of the muniments under which the parties claim, or the boundaries. Eden, 138. And when the parties come before the Court, the plaintiff, the acknowledged owner of the soil, and the defendant, a naked trespasser, it strikes me as comporting more with substantial justice to both parties to restrain the trespass, than to leave the plaintiff to pursue his remedy at law. In most trespasses, particularly those committed on lands, it is utterly impossible to fix with precision the quantum of injury, and we know from experience that the verdicts of juries in such cases are generally the results of compromise between the extremes, and when this is not the case, the plaintiff is inadequately rewarded, or the defendant punished with great severity. It would therefore be for the interest of both parties, that the trespass should be prevented : every one has the right to enjoy *6191 ^at *whieh *s owa; and one who would wilfully disturb him in it, has no right to complain if he is restrained. Injunctions to restrain trespasses, have been confined to those cases only where the injury was supposed to be irreparable, and whatever may be my own views of its propriety, I am not disposed to part from the old, or make a new precedent, and will proceed to consider whether this case falls within the established rule.
    The bill states, and the answer admits, that the locus in quo is pine barren, and is principally valuable on account of the fire-wood and timber growing on it, and its contiguity to the Columbia market. That the defendant has been for some time past cutting, and claims the right, and proposes to continue to cut the wood and carry it to market. And there is no question that by the employment of an adequate force which the sale of the wood itself might command, the defendant might, before the action at law could be tried, strip it of the last stick of wood upon it, and leave the plaintiffs a barren waste. Por this injury, an action at law certainly lies, and the plaintiffs would be entitled to recover the value of the wood cut and carried off. He cannot, in a Court of law, purge the conscience of the defendant, and by that means ascertain the extent of his injury, and much less would he be able to show the greater benefit that he might have derived by a better husbandry, and waiting for better markets; and it is obvious that any damages which a jury might give, would be the result of conjecture. But above all, the trespass tends to the destruction of the wood and timber which gives the land its principal value, and brings the case precisely within the principal of the rule. A case occurred in the Court of Appeals a few years ago which is not reported, and of which I retain a very imperfect recollection, which strikes me as being on all fours with this. If my recollection does not mistake me, that was an application for an injunction at the instance of the owner of a saw mill, to restrain a trespasser from cutting timber on lands contiguous to it, and which was principally valuable on account of the timber. The application was refused by the Circuit Court, and on an appeal an injunction was ordered to issue. The plaintiffs, in support of this application, rely also on another ground which I am disposed to think has merits: the insolvency of the defendant, and the probability that he will be unable to pay the damages which may be recovered in the action at law.
    The ground on which the Court proceeds is, it will be recol- r^g^Q lectod,* to restrain those injuries which may be supposed to be *- irreparable at law — and what benefit, I would ask, would a plaintiff derive from a judgment at'law against a notoriously vagrant pauper ? And how, I ask, is the community to be protected against the wanton injuries of this class of people ? Are we to look and see them dispose of our property in mere wantonness, and be gravely told that the Court of law affords relief by compelling them to answer in damages ? I think not; justice is not so blind, nor the arm of the law so feeble, as to permit such an outrage when preventive justice can be interposed.
    The fact of insolvency is denied in the defendant’s answer, and he affirms his ability to pay any damages which plaintiffs may recover on account of the supposed trespass : but from the affidavits of several persons who are intimately acquainted with his circumstances, I am led to conclude that his means are at best only slender, and that from his improvident habits, it is more than probable they will rather decline, if not go to ruin, than improve. At any rate, they are, in my estimation, a very inadequate security for the damages which the plaintiffs have already sustained, according to the defendant’s own account of their extent, and although that is not the abject state of pauperism supposed, the result would be the same, if in the end the defendant should be unable to pay the damages. The right of the plaintiff to read affidavits in contradiction of the defendant’s answer in relation to the allegation of his insolvency is denied. The rule on this subject appears to me to be well settled. The plaintiff is unquestionably at liberty to file and read affidavits on an application for an injunction in support of the allegations in this bill before the coming in of the answer; and as constituting a part of the case, they may be read on any subsequent motion to perpetuate or dissolve the injunction; but it is an inflexible rule that no affidavits filed subsequently to the coming in of'the answer, can be read ; and the reason given for it by the Lord Chancellor, in Smythe v. Smythe, 1 Swanston, 253, is that it is calculated to surprise the defendant. If, he observes, the plaintiff at once supports the allegation of his bill by the statement of particular facts or affidavits, the defendant has an opportunity of explaining or denying them ; but if they are kept back until after the answer is filed, it is not dealing fairly with the defendant. The only exception allowed to the rule, is in cases of waste, and such as are analogous, for 1 the purpose of preventing irreparable* mischief, and extends only -I to the fact of waste and not to the question of title. Ib. 254, note b. and the eases there cited. On looking into the proceeding, I observe, that although the defendant has answered, neither the bill, answer, or affidavits have been filed; and I suppose that this formality has been waived by the counsel, and that the defendant had notice of the affida vits before the answer was put in — one of them is indeed endorsed on the bill, and no objection has. been raised on that account — I am therefore of opinion that the affidavits are admissible. It is therefore ordered that an injunction do issue to restrain the defendant from cutting wood or timber, on the land described in the conveyance from James Cayee to Fabriel Friday, referred to in the pleadings, until the trial and final determination of the action at law brought by the plaintiffs against the defendant also referred to in plaintiff’s bill, from trespass thereon, or until the further order of this Court.
    
      Be Saussure, for the appellant.
    
      Gregg, contra.
   On appeal, the following opinion was delivered : — ■

De Saussure, Chancellor.

This was a bill filed to obtain an injunction to restrain the defendant at law from committing waste by cutting off timber from the land in question, pending an action of trespass to try title at law, brought by plaintiff, Kinsler, against defendant, Clarke. It was alleged that the chief value of the land consisted in the timber which the defendant was cutting down : and that he was insolvent, and not able to answer in damages for the injury done.

These allegations were sustained by affidavits. The answer denied the insolvency.

The claim of both parties to the title was set forth in the pleadings, and the Chancellor on the Circuit, to put an end to litigation and the multiplicity of suits, made a decree on the question of right. But as this Court is unwilling to decide on the question of title, which is pending in a suit at law, it will make no decree on the appeal on that ground, but will leave the parties to the litigation of the title in the Court of Law, to which the Court remits them.

The only question, then, for the judgment of the Court, is on the *6291 aPPe£d ft’om decree of the Chancellor granting an injunction Restraining the defendant at law from cutting down timber on the land in dispute, until the question of right should be decided.

The appeal made was on the ground, that in a mere case of trespass, no injunction ought to be granted.

On a careful examination of the decree of the Chancellor on the Circuit, I concur entirely with him, in directing an injunction to be issued in this case. He has placed the interposition of the Court, for the protection of the land in question from irreparable injury, for which the remedy would be doubtful and uncertain, on the true grounds : and I concur entirely with him. Nor is this doctrine and practice new in England or in this country.

In analogous cases, this branch of preventive justice is freely administered in England, and in this State several important decisions have been made in the same spirit.

The case of Brookes & Marsh from Edgefield (Col. MS. cases), was decided on great argument, in which the Circuit Court granted an injunction pendente lite to restrain a party in possession from cutting off the timber from a tract of land valuable almost wholly for its timber ; and he was alleged on affidavits to be insolvent and incapable of answering in damages. And this decree was solemnly affirmed.

It is ordered that the decree on this point be affirmed, and* the injunction continued.

Appeal on this point dismissed.

Chancellors Johnson, Harper, and Johnston, concurred.  