Hamilton v. Ely , 4 Gill 34 ( 1846 )

Spence, J.,

delivered the opinion of this court.

The bill in this case charges, that the complainants were seized in their demesne, as of fee, as tenants in common of a certain tract of land containing thirty-one and one-quarter acres, more or less, lying and being partly in Howard district, and partly in Baltimore county, called Ely's Chance. That the respondents, “co-operating and confederating together, and acting jointly, have entered upon said tract of land and cut down large quantities of wood, and quarried large quantities of limestone, and that they are continuing to cut down wood and quarry stone ; and as the complainants believe, design to remove said wood and limestone, already cut and quarried.”

The complainants further charge, that they have instituted actions of trespass quare clausum fregit, against the respondents for the trespasses committed, which actions are pending. The bill prays, that an injunction may issue enjoining the respondents from cutting down the trees on said tract of land, and from removing the wood so cut, and the stone quarried, from said land, and from burning the same, and from committing any waste or trespass on said land. On which bill, the chancellor passed the following order: “Let writs of subpoena and injunction issue, as prayed by the foregoing bill.”

The bill in this case, neither alleges the trespass as going to the destruction of the inheritance, nor the mischief as irreparable. If the bill did contain such allegations, that would not. be sufficient, the facts must be stated to shew the apprehension of further acts of trespass, well founded, to satisfy the conscience of the court; “without such a statement of facts, no injunction should have issued; and this defect in the bill, even if such a remedy were applicable to such a case, is not cured by the testimony taken in the cause.” Amelung and others, vs. Seekamp, 9 G. & J., 474.

it is not the established chancery doctrine in Maryland, to restrain the repetition of a mere trespass, pending proceedings at law to try the right. The learned judge, in the case of Amelung and others, vs. Seekamp, says, “it has never received the sanction of the appellate tribunal of this State, and will not be sustained by this court.”

The bill, in this case, charges a mere trespass, where the injury is not irreparable and destructive to the plaintiff’s estate; but is susceptible of perfect pecuniary compensation, for which the party may obtain adequate satisfaction at law.

We do not mean to say, that under certain circumstances, the quarrying of stone might not be an injury to the inheritance; but that, in this case, no such circumstances are averred, as shew that the quarrying of stone would be irreparably injurious to the inheritance.

There is no charge of insolvency of the respondents.

This case falls within that class of cases, in which chancery will not restrain by injunction. Vide Amelung and others, vs. Seekamp, 9 G. & J., 468.

This court will sign a decree, reversing the chancellor’s order continuing the injunction, and remand the cause.

ORDER REVERSED AND CAUSE REMANDED.