Hawley v. Clowes , 2 Johns. Ch. 121 ( 1816 )

The Chancellor.

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The injunction must be modified, so as to confine it to timber then standing and growing on the premises, and not wanted for the necessary use of the farm. The last-cited case admitted the authority of the *Court to grant the writ between tenants in common, in special cases, as where the defendant was sworn to be insolvent; and Lord Eldon, in the subsequent-cases of Hole v. Thomas, (7 Vesey, 589.) and of Tworl v. Tworl, (16 Vesey, 128.) admitted the propriety and necessity of this power in the Court, between tenants in common, where the waste was destructive to the estate, and not within the usual and legitimate exercise of enjoyment. The case, therefore, of the exercise of this power, must rest in sound discretion; it is not a case of a want of jurisdiction. Here is a bill for partition, and pending the suit it appears to be extremely fit that the tenant in common in possession, should not be permitted to strip the land of its timber. It is destructive, in many cases, of the value of the estate, and not consistent with a prudent enjoyment by the real owner. The statute of W. 2. 13 Edw. I. c. 22. (sess. 10. ch. 6.) gives an action of waste by one tenant in common against another. It is, therefore, an injury recognized by law, and the remedy by injunction is applicable to every species of waste, it being to prevent a known and certain injury; this remedy is peculiarly proper and appropriate pending a bill for partition of the very land. It comes within the equity of the statute, (of sess. 10. ch. 50. s. 29.) which prohibits a defendant, pending a suit for the land, from making waste, and directs the Court, where the suit is pending, to prevent it. The injunction, therefore, under the above modification, must be continued until answer, and further order.

Injunction continued.