nature of the property. And where complainant, who seeks relief against the commission of waste in the use of mines on premises demised by him, has stood by for many years and allowed defendants to expend large sums of money in developing the mines, without objection, he will not be allowed an injunction. 1 Norway v. Rowe, 19 Ves. 159; Parrott v. Palmer, 3 Myl. & K. 632. 'Parrott . Palmer, 3 Myl. & K. 632. "If there be anything well established in this court," says Lord Brougham in this case, "it is that a man who lies by, while he sees another person expend his capital and bestow his labor upon any work, without giving to that person notice, or attempting to interrupt him-one who thus acquiesces in proceedings inconsistent with his own claims-when he comes to enforce those claims in this court, shall in vain ask for its interposition by an injunction, of which the effect would be to render all the expense useless, which he voluntarily suffered to be incurred. Here more years have been allowed to elapse than the number of weeks which would have closed the doors against the plaintiff coming to seek an injunction." CHAPTER X. OF INJUNCTIONS AGAINST TRESPASS. I. GENERAL FEATURES OF THE JURISDICTION. [II. TRESPASS TO MINES. IV. SPECIAL ACTS OF TRESPASS. I. GENERAL FEATURES OF THE JURISDICTION. § 158. Origin of the jurisdiction; possession and title. 159. General rule; exceptions. 460. Two conditions necessary. 461. Requisites of the bill. 462. Distinction as to articles of use and of luxury. $458. The granting of injunctions against the commission of trespass seems to have grown out of the jurisdiction in cases of waste, to which the relief was formerly confined. Privity of title being the essential ground of the interference in restraint of waste, it was not until a very recent period that the rule was relaxed to admit of the relief against a naked trespass, unaccompanied with privity of title.1 Where the party aggrieved is out of possession, equity will only interfere Moore v. Ferrell, 1 Geo. 7. The earliest case is known as Flamang's Case, cited in 6 Ves. 147, 7 Ves. 308, and 8 Ves. 90, in which Lord Thurlow granted the relief with reluctance against a trespasser who was working into minerals on complainant's close and thus impairing the substance of the estate. The relief was based solely upon the irreparable injury that would result from a continuation of the trespass. The same principle was afterward recognized and followed by Lord Eldon. See Mitchell v. Dors, 6 Ves. 147. on the ground of fraud or collusion, or that the trespass threatened would be destructive of the estate.1 And if the title be denied or in doubt, the injunction will generally be refused against a defendant in possession, until the title is established at law. Though in a strong case of irreparable mischief the rule has been departed from.3 And where the party aggrieved is in possession he will be allowed to restrain such trespasses as would result in irreparable damage in the event of refusing the relief.4 $459. The general principle underlying all the authorities upon the subject of injunction against trespass is, that where the remedy at law is ample, equity will not interfere. An exception, however, is recognized where the equitable owner of the property injured is under some disability which would prevent the enforcement of the legal remedy, as where 1 Neale v. Cripps, 4 Kay & J. 108; Fingal v. Blake, 2 Mol. 50, 542; Lloyd ⚫. Trimleston, Ib. 81. ' Perry v. Parker, 1 Woodb. & M. 280; Hart v. Mayor etc., 3 Paige, 213; Chesapeake etc. v. Young, 3 Md. 480. 'Burnley. Cook, 13 Tex. 586. And it has been held, though upon what grounds it is difficult to conjecture consistently with the general rule as stated in the text, that the denial of complainant's title by the answer will not suffice to dissolve the injunction. Moore v. Ferrell, 1 Geo. 7. 4 Lowndes o. Bettle, 33 L. J. Ch. 451. In this case complainant and his ancestors had been in possession during a period of eighty years, and defendant, who claimed as heir at law, sought to enter and exercise acts of ownership by cutting sods and timber. The injunction was granted upon the principle stated in the text. The distinctions resting upon the question of possession are very clearly set forth by Kindersley, Vice Chancellor, as follows: "Where, therefore, the plaintiff is in possession, and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law, though where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, there the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate." And see Hart . Mayor etc., 3 Paige, 213. Cooper v. Hamilton, 8 Black f. 377; Smith v. Smith, 4 Jones Eq. 303; Gause o. Perkins, 3 Jones Eq. 177; Stevens v. Beekman, 1 Johns. Ch. 318. property is bequeathed to a feme covert as her separate estate, without the intervention of a trustee, the legal estate thereby vesting in the husband. In such case equity will restrain the sale of the property under execution against the husband.' The necessity of preventing a multiplicity of suits affords another exception to the rule, and will warrant the interposition of the strong arm of equity, even though there be a remedy at law. But to warrant the interference in such cases there must be different persons assailing the same right, and the principles upon which the relief is granted have no application to a repetition of the same trespass by one and the same person, the case being susceptible of compensation in damages.3 § 460. To warrant the interference of equity in restraint of trespass, two conditions must co-exist: first, complainant's title must be established by legal adjudication; and, second, the injury complained of must be irreparable in its nature. And to come within the rule the injury must be of such a nature as not to be susceptible of adequate pecuniary compensation in damages. Nor will equity interfere to restrain a trespasser simply because he is a trespasser, but only because the injury threatened is ruinous to the property in the manner in which it has been enjoyed and will permanently impair its future enjoyment. And if the title to the locus in quo is in doubt, the injunction, if allowed at all, should only be temporary until the title can be determined at law." § 461. It is not sufficient that the bill contains mere general averments of irreparable mischief, but the facts consti 1 Smith v. Smith, 4 Jones Eq. 303. Coit v. Horn, 1 Sandf. Ch. 1; Hatcher v. Hampton, 7 Geo. 50; Nutbrown v. Thornton, 10 Ves. 159. 'Hatcher v. Hampton, 7 Geo. 50. 113. Gause v. Perkins, 3 Jones Eq. 177; Schurmeier v. St. Paul etc., 8 Minn. Weigel v. Walsh, 45 Mo. 560; Bethune o. Wilkins, 8 Geo. 118; Vanwinkle v. Curtis, 2 Green Ch. 422; Shipley v. Ritter, 7 Md. 408; Foster, er parte, 11 Ark. 304; Ross v. Page, 6 Ohio, 166. • Echelkamp v. Schrader, 45 Mo. 505; Mayor etc. v. Groshon, 30 Md. 436. And in the absence tuting such mischief should be set forth.1 of any allegations that the trespass is a continuing one, or is likely to be continued, the injunction will be withheld. It is a sufficient setting forth of complainant's title if he alleges himself to be the owner in fee simple by purchase and to be in possession. 3 462. A distinction has been taken between trespasses consisting in the removal of such articles from one's premises as are necessary to their enjoyment, and such as are merely articles of convenience or luxury; and while in the former case the injury would prove irreparable, and the injunction is therefore granted, in the latter, the articles being merely articles of convenience, ample remedy can be had at law for their removal, and equity will not interfere. So where defendant threatens to tear down and remove a portion of complainant's dwelling, which he alleges is built on his own land, the injury is so irreparable as to warrant an injunction." II. CUTTING TIMBER. § 463. A strong case of destruction or of irreparable mischief must be made out. 464. Cutting of all the wood on premises may be enjoined. 465. Rule as to timber already cut. 466. Possession coupled with title. 467. Fruit trees and ornamental shrubbery; insolvency; value of prop erty. § 463. Though the modern doctrine of courts of equity in restraining trespass is, as we have seen, more liberal than the ancient, yet a strong case of destruction or irreparable mischief 'White v. Flannigain, 1 Md. 525; Waldron v. Marsh, 5 Cal. 119; Carlisle v. Stevenson, 3 Md. Ch. 499. |