Hatcher v. Hampton , 7 Ga. 49 ( 1849 )

By the Court. —

Lumpkin, J.

delivering tlie opinion'.

What is the case mad© by this bill? Celia Hatcher complains that she had been for thirteen years possessed, in her own right, of lot No. 352, in the first District of Baker County ; that James Hampton commenced an action of ejectment against her for the lot, and that subsequently thereto, he entered upon the premises with his overseer and servants, and was deadening the timber thereon with a view to cultivate the same. She farther states, that the injury thus committed will be irreparable, and that it will expose her and her family to sickness; wherefore she prayed an injunction, which was originally granted by the Judge, to future trespasses — the defendant being at liberty, if he thought proper, to use the land already cleared.

[1.] "Was this trespass of such a character as to authorize the interdiction of an injunction to restrain it? "We think not, looking alone to the charges in the bill. If it is, we can hardly conceive of a case of a mere trespass where the Court would not be entitled to interfere by injunction; and yet all the books concur in holding that, to justify an injunction, there must be something peculiar in the trespass — as, for example, the unauthorized running of a road through the garden of one who lives by gardening ; the diverting of water from its usual channel, which propels machinery. Even as it respects this trespass, there might be such a case made, not only in felling shade trees, but in the cutting down of pine timber on land.

[2.] If the bill alleged, for instance, that a saw mill had been erected on the land, or in the vicinity, which rendered this pine timber peculiarly valuable for lumber, I will not say that this would not justify the interposition of a Court of Equity. But no such case is made. It is a mere trespass, and for any thing that appears, abundantly capable of compensation in damages, by ordinary suit at Common Law. Under these circumstances, the Court will not arrest it by the exercise of this extraordinary power.

[3.] But it is said, that Chancery should interpose to avoid a multiplicity of suits; and we concede there are such cases, and that this is a well known principle of Equity jurisprudence. It is, however, where there are sundry persons controverting the same right, and each standing on his own pretensions, and has no application to persons who. are guilty of a repetition of the same trespass, in despite of repeated suits and recoveries against them. It has never been supposed, that because one person chooses daily to pull down the fence of another, and turn his stock in his fields, that this would authorize the Courts of Chancery to restrain the intruder by injunction.

Indeed, the only error which it occurs to us the Court committed, was against the defendant in not dissolving the injunction in tato, instead of in part only. For it is not enough, we apprehend, for the complainant to state that she fears sickness. She should have alleged issuable facts, susceptible of trial, an'd which, at least upon their face, would have made out a presumptive case for relief.

What has been said will sufficiently vindicate the decree of the Circuit Court, and its judgment is consequently affirmed.