Dunkart v. . Rinehart , 87 N.C. 224 ( 1882 )

The contest between the parties is about certain walnut trees to which both parties claim title.

The plaintiff sues for a specific performance of the contract set out in the complaint and for damages for a breach thereof, and that the defendants in the meantime be enjoined from cutting and carrying away the walnut timber described in the complaint, until the plaintiff shall have removed the trees claimed by him.

Whether the title to the trees passed by the contract between (227) the plaintiff and Rinehart, is an immaterial inquiry in the case. For conceding that the contract was an absolute sale of the trees to the plaintiff, he is not entitled to the extraordinary remedy he seeks.

It has been to often decided by this court, to be any longer an open question, that the extraordinary power of the courts will not be exercised to restrain the cutting of trees, other than those for ornament, or any other trespasses to real property, except where the injury will be irreparable, and not compensable in damages in consequence of the insolvency of the trespasser.

The allegation of the complaint that the defendants are insolvent, is an essential averment, without which an injunction will not be granted, except in some special cases where it is made to appear that the injury will be irreparable, even when the defendant is solvent. McCormick v. Nixon,83 N.C. 113; Thompson v. Williams, 54 N.C. 176; Gause v. Perkins,56 N.C. 177. In the latter case, which was a bill in equity for an injunction, alleging that a trespasser was about to commit an irreparable injury by boxing and working turpentine trees, and by cutting timber and making staves on land fit only to be cultivated for these products, without an averment of the defendant's insolvency, the bill was dismissed. Chief Justice PEARSON in delivering the opinion of the court, said: "Does the cultivation of pine trees for turpentine, or the cutting down oak trees for staves, or cypress trees for shingles, cause an irreparable injury? one which cannot be compensated for in damages? The very purpose for which these trees are used by the owners of land, is to get from them, turpentine, staves and shingles for sale. It follows therefore as a matter of course, that if the owner of the land recover from a trespasser the full value of the trees that are used for these purposes, he thereby receives compensation for the injury, (228) and it cannot in any sense be deemed irreparable. So that, private justice and public policy which call for a full development of the resources of the country, alike forbid the interference of equity, except in cases where from the insolvency of the alleged trespasser, the compensation in money cannot be had."

In the case before us, there is no allegation that the defendants are insolvent, or that the injury sought to be enjoined will be irreparable. But on the contrary, the uncontradicted proof is that the defendants are solvent. There is no reason why the plaintiff, if he has title to the trees, may not receive full compensation in damages for any loss resulting from the acts of the defendants.

This case is distinguished from the cases of Troy v. Norment,55 N.C. 318, and Purnell v. Daniel, 43 N.C. 9, which were special injunctions, continued to the hearing, where there was no allegation of insolvency; but they turned upon special circumstances, and are not authorities in conflict with this opinion and the decision above cited in its support.

Our opinion therefore is, that there is no error in the ruling of his Honor in refusing to grant the injunction prayed for in the plaintiff's complaints. Let this be certified to the superior court of Haywood County that further proceedings may be had according to law.

No error Affirmed.

Cited: Dunkart v. Henry, 87 N.C. 229; R. R. v. R. R., 88 N.C. 82;Levenson v. Elson, 88 N.C. 185; Frink v. Stewart, 94 N.C. 486; Bond v.Wool, 107 N.C. 153; McKay v. Chapin, 120 N.C. 160; Griffin v. R. R.150 N.C. 315.