Moore & Co. v. Daugherty, Allen & Co. , 146 Ga. 176 ( 1916 )

Evans, P. J.

(After stating the foregoing facts.)

1. Though the plaintiffs alleged that they had perfect title to the land, they failed to exhibit such title, and did not bring themselves within the timber cutters’ act (Civil Code of 1910, § 5504). If the plaintiffs are entitled to a writ of injunction, it must be based on equitable principles. Both parties claimed title under conveyances which recited that the land had been granted to Thomas Taylor and that the grantor in each conveyance claimed to be his heir at law. The plaintiffs’ deed was made by Martha A. Cramer and others claiming to be his only heirs at law. So far as the abstract of the deed in the record discloses, this deed is joint and does not purport to convey the undivided interest of any particular heir. The deed under which the defendants derive title to the timber purports to have been made by Martha A. Cramer, and contains a recital that she is the surviving heir at law of Thomas Taylor. Thus it appears that both claim title under Martha A. Cramer, and there is no testimony attacking the genuineness of either deed. The plaintiffs’ deed, being many years older than that under which defendants derive their title, will prevail over the younger deed. It appearing that both parties claim under a common grantor, the plaintiffs are relieved of the necessity of showing title into such common grantor. Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321 (78 S. E. 900). As between the plaintiffs and the defendants, the plaintiffs are vested with the superior title, which would authorize a recovery for the alleged trespass. It remains, therefore, to determine whether under the allegations and facts appearing at the hearing they showed a right to an interlocutory injunction.

2. One ground of the plaintiffs’ claim for an injunction is that the defendants declared their intention to operate the trees which they had boxed, for the purpose of utilizing the crude gum, that this would amount to a frequent trespass on their property, and that the frequency of trespasses is a ground for equitable interference. It is now well established that a continuing trespass will be restrained by injunction until the final hearing, although the parties may be solvent. The theory of equitable jurisdiction on this ground is discussed by Mr. Justice Cobb in Gray Lumber Co. v. Gaskin, 122 Ga. 342 (50 S. E. 164). As the learned Justice very pertinently remarked in that decision, “Ought the plaintiff to be harassed and annoyed by being required to bring a new suit every day as long as the trespasses continue, when the whole controversy could be settled in one suit?” It would be abhorrent to a sense of justice that a wealthy trespasser could say to the true owner of land, “I know that I have no title and no right to cut the trees on your land, or to work the same for turpentine; but because of my wealth I have the right to use your property for my personal gain by repeated and continuous trespasses, and your only remedy is an action for damages.” The plaintiffs appealed to the trial court to protect the property from loss resultant from continuously operating the turpentine farm. As the plaintiffs have the superior title, no equity can arise in favor of the defendants to protect the plaintiffs in the management and control of their property against their express and vigorous dissent. As was said in Loudermilk v. Martin, 130 Ga. 525 (61 S. E. 122), “Whether the defendants were solvent or insolvent, the plaintiff, to prevent a multiplicity of suits for damages occasioned by trespasses, could maintain an injunction against the cutting and removal of timber by persons who had no right to cut and remove it, where • the evidence showed that the trespasses were being committed and would be continued from day to day.” We do not see that there is any difference between a trespass committed by hacking and scraping trees and.the removal of the crude gum' from day to day, and one committed by cutting and removing the trees. In Strain v. Stark, 135 Ga. 687 (70 S. E. 568), the plaintiffs and defendants were in possession of adjoining lots of land under claim of title, and there was a dispute between them as to the location of the dividing line. The defendants were proceeding to cut the timber on the disputed territory, and the plaintiffs filed their petition to enjoin them. On an interlocutory hearing the evidence was conflicting as to the location of the dividing line; and this court held that it was proper to grant a temporary-injunction until the final hearing. In Florida Yellow Pine Co. v. Flint River Naval Stores Co., supra, the plaintiff sought to enjoin the defendant from cupping, boxing, and extracting gum from the trees on a described tract of land. The defendant was engaged in that work at the time application was made for a writ of injunction. The evidence tended to show that the defendant would continue to cup, box, and extract gum from the trees; and the court granted a temporary injunction. This court upheld that judgment on the ground that a trespass may be restrained in equity where it is a continuing one and will give rise to a multiplicity of suits, although the trespasser may be solvent. Under the facts of the case it was an abuse of discretion to refuse an injunction. _

3. Over objection the court received in evidence a certified copy of an interlocutory order passed in the case of T. J. Pierce v. Moore & Company, on January 29, 1915, enjoining the latter from working the timber on the two lots of land in controversy until the final termination of the case, or otherwise ordered by the court. This evidence was clearly inadmissible. The parties to the case are not the same. The judgment is not final, but only preservative of the status. The defendants showed no privity with Pierce, and such testimony could not be otherwise than harmful to the plaintiffs.

Judgment reversed.

All the Justices concur.