§ 419. The jurisdiction of recent origin; remedy at common law. 420. Distinction between waste and trespass.

421. Complainant must show good title; facts must be alleged.

422. Injunction in aid of the legal right; title must be established st

law.

423. Insolvency of defendants in possession.

424. Adverse possession; use of land in ordinary manner not enjoined pending action to try title.

425. Not essential that actual waste should have been committed.

§ 419. The jurisdiction of equity in restraining the commission of waste is of comparatively recent origin and rests upon the necessity of preventing irremediable injury. At common law the mode of proceeding was by writ of prohibition issuing out of the Court of Chancery, which, if ineffectual, was followed by an original writ of attachment from the same source, returnable in the courts of common law. Originally this proceeding was confined to tenants in dower, tenants by curtesy, and guardians in chivalry, though it was afterward extended, by statute, to other persons.1 The writ of estrepe

'Jefferson v. Bishop of Durham, 1 Bos. & Pull. 120.

ment was also a common law writ, whose purpose was the staying of waste in any action real, after judgment and before possession delivered. Its use, however, did not, at common law, extend to the case of waste committed by the tenant, pendente lite, and it was not until the statute of Gloucester1 that its use was enlarged to meet the case of waste pending the suit. The writ of estrepement being confined to actions real, it became necessary, in cases of ejectment, to apply to equity to supply the deficiencies of the common law by restraining waste pending an action of ejectment to try the title, and this would seem to be the origin of the jurisdiction of equity in cases of waste.3

§ 420. The distinction between waste and trespass consists in the former being the abuse or the destructive use of property by one who, while not possessed of the absolute title thereto, has yet a right to its legitimate use; trespass being an injury to property by one who has no right whatever to its And an injunction issued pending the trial of the title at law in an action of trespass quare clausum, is ancillary or auxiliary to the action at law and follows its fortunes. It follows, therefore, that when plaintiff recovers a general judgment in his action at law, the writ will be made perpetual.

use.4

§ 421. It may be laid down as a general rule that equity will not restrain waste except upon unquestioned evidence of complainant's title, and where defendant is in possession, under adverse title, the relief will be refused." Nor will an

16 Edw. I. Ch. 13.

3 Black. Com. 227, 228.

2 Story's Eq. § 911, and cases cited; 3 Black. Com. 227, 228.

4 Hill v. Bowie, 1 Bland, 593.

Id.

Pillsworth . Hopton, 6 Ves. 51; Davies v. Leo, Ib. 784; Poindexter . Henderson, Walk. Miss. 177; Nevitt v. Gillespie, 1 How. Miss. 108. "I do not recollect," says Lord Eldon in Pillsworth v. Hopton, "that the court has ever granted an injunction against waste under any such circumstances: the defendant in possession: the tenants having attorned: the plaintiff having failed in his ejectment: both setting up pretenses of title. I remember perfectly being told from the bench very early in my life, that if the plaintiff filed a bill for an account, and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he

injunction be allowed where it does not appear that the injury will be destructive to the estate of inheritance or productive. of irreparable mischief.1 Nor will mere allegations of irre

parable injury suffice, but the facts must be shown which go to constitute the injury alleged to be irreparable. And where the injury complained of is susceptible of perfect pecuniary compensation, and one for which satisfaction in damages can be had at law, the injunction will be withheld. So where

the right to the premises is in doubt, pending an action of ejectment at law, the relief will not be granted, on the general principle that where the right is doubtful equity will not interfere. 4

§ 422. The jurisdiction of equity in cases of waste is not in derogation of the jurisdiction of courts of law, but rather in aid of the legal right. Hence arises the limitation that it will be exercised only when complainant has established or is endeavoring to establish his title at law. And on an application for an injunction, defendant being in exclusive possession, under colorable title, equity will not sustain the legal estate in the absence of proceedings at law to try the title of complainant. And where an injunction has been granted,

stated himself out of court as to the injunction." The reporter adds: "His Lordship having inquired if the bar knew any instance, and none being produced, would not make the order." But see, contra, Shubrick . Guerard, 2 Desaus. Eq. 616, note.

1 Hamilton v. Ely, 4 Gill, 34; Amelung v. Seekamp, 9 Gill & J. 468. Bogey v. Shute, 1 Jones Eq. 180.

3 Cockey v. Carroll, 4 Md. Ch. 344; Amelung v. Seekamp, 9 Gill & J. 468. 'Pillsworth v. Hopton, 6 Ves. 51; Field v. Jackson, Dickens, 599; Storm . Mann, 4 Johns. Ch. 21.

'Bogey v. Shute, 4 Jones Eq. 174. In this case an injunction was sought on the ground of the insolvency of the defendant and injury to the substance of the estate by acts in the nature of destructive waste. The court, Ruffin, J., say: "Such a bill can not be sustained against one in exclusive possession-claiming, colorably at least, the absolute estate, until the plaintiff has established his title at law-or, at all events, an injunction can be granted only when the plaintiff is endeavoring to establish his title at law, and until he should have a reasonable time allowed for that purpose. For, the court of equity acts in such cases, not as superseding the jurisdiction of the courts of law over a legal title, but only in aid of a legal remedy, defective, because dilatory."

the title being in dispute, it will be dissolved, no action at law having been undertaken to try the title. Nor will the injunction be retained on the ground that one of the defendants has brought an action of trespass quare clausum against complainant to determine the legal title, since that is purely a legal question.

423. But it has been held sufficient to sustain a bill for an injunction to stay waste and prevent the removal of improvements, that the bill alleges that complainant is the owner and entitled to the possession of the premises, with the improvements, and that defendants are in possession and threaten to destroy the improvements, and that they are insolvent and unable to respond in pecuniary damages. 3

424. Where reliance is had upon adverse possession to warrant the interference, such possession must be accompanied with a positive and exclusive claim of the entire title. And if complainant's title be subordinate to, or admit the existence of a superior title, such possession, regardless of its duration, will not be held adverse, and equity will not interfere.* And pending an action of ejectment to try the title, defendant will not be restrained from using the land in the ordinary course of agriculture, and clearing off timber and erecting buildings for that purpose. 5

§ 425. To warrant the interference it is not essential that actual and serious waste should have been already committed." Though in general equity will only interfere to prevent future waste where complainant is remediless at law, or where a discovery is necessary. And where the waste is trivial equity will not interfere unless an intention to commit further waste be shown." But if it can be shown that an intention exists to

commit waste, or that threats of its commission have been made, the court may interfere. 1

II. DESTRUCTION OF TIMBER.

426. When equity may enjoin the cutting and removal of timber. 427. Preliminary steps sufficient ground for interference.

428. Irreparable injury must be shown; injunction not granted as to timber already cut.

429. Injunction not allowed for past injuries, nor where defendants claim both title and possession.

430. Special cases.

431. Tendency to a more liberal use of the writ; but not allowed in case of disputed title.

§ 426. The most frequent class of cases in which the aid of equity is invoked for restraining waste is in the cutting and removal of timber from estates of freehold. Pending an action at law to try disputed titles, the cutting and removal of timber will be enjoined where such timber constitutes the chief value of the land, and where it is shown that defendant would be unable to respond in damages. So where complainant avers title in himself and has brought an action of forcible entry, defendant being in possession of the premises, an injunction may be allowed to prevent defendant from cutting timber.3 And where both parties claim title, the cutting of timber has been restrained on the principle of bills quia timet. Nor is it necessary that there should be an actual lis pendens in a court of law, and equity may, in its discretion, enjoin the cutting down and removal of large quantities of timber, where no action is pending.5

'Gibson v. Smith, 2 Atk. 182; Coffin v. Coffin, Jac. 71.

* Kinsler v. Clarke, 2 Hill Ch. 617.

'Hicks v. Michael, 15 Cal. 107. 'Peak v. Hayden, 3 Bush, 125.

Kane v. Vanderburg, 1 Johns. Ch. 11. Kent, Chancellor, in delivering the opinion, says: "Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of