Boyle v. Laird , 2 Wis. 431 ( 1853 )

By ih& Court,

Crawford, J.

The bill of complaint in this case was filed to obtain a writ of injunction to restrain the defendants from committing waste upon a cer£a}n i0t 0f land in the possession of the complainants, as lessees of Daniel Gr. Whitney. The land is situate in the county of La Fayette, and was held and enjoyed by the complainants at the time of the filing of the bill, for the purpose of mining for lead ore thereon. The right of the complainants to the occupancy and use of the lot was derived from a lease given to them by the above named Whitney, by his attorney in fact, John Burrell, which lease was to continue for the term of one year from the date thereof, subject to be renewed, provided the land did not “ change owners.” The date of the lease was the 26th day of January, 1850, and the bill of complaint was filed on the 15th day of April next thereafter. The material charge in the bill is, that the defendants had before that time illegally entered upon the lot in question and had taken away and disposed of large quantities of lead ore from the “ diggings” of the complainants, and were then engaged in illegally removing, and converting to their own use, large quantities of lead-ore of great value, to the great injury of the complainants.

The prayer of the bill was for a writ of injunction to stay and prevent the commission of further “ waste and spoil ” on the premises, and that the same, on a final hearing, might be made perpetual.

The Court Commissioner of La Fayette county allowed a writ of injunction, as prayed for, which was issued.

The defendant, Thomas Boyle, filed an answer denying the material charge of the bill, and the other defendants (Turney, Harkin and Meloy,) being severally under the age of twenty-one years, put in the usual answer by their guar diem ad Ut&m. A replication to these answers was filed, and the cause heard in the Circuit Court of the county of La Fay-ette at the October term, 1851, and at the March term, 1852, a decree was rendered, declaring the complainants to be lessees of the lot described in the bill of complaint, and perpetually enjoining the defend, ants from interfering with or molesting the complainants in the enjoyment of the said lot.

The proofs submitted on the hearing, whatever they may have been, have not been preserved or returned to this court, but a stipulation as to the facts proved at the hearing has been signed and filed here, from which we find that during the continuance of the lease to the complainants, the defendants did en, ter upon the premises, and dig and take lead ore therefrom, and convert the same to their own use; that Burrell, the attorney in fact of Whitney, had, during the year 1850 and within the term specified in the lease, purchased the tract of land on which this mining lot was situated, from Whitney, and was, at the time of the hearing, the owner of said land ; that he (Burrell) had not, since the 26th day of January, 1851, received any rent from the complainants, or either of them, and since that date had not recognized or treated them, or any of them, as tenants or as having any right on said land; that the lease to the complainants had not been renewed, and he did not intend to renew it.

Independent of the objection that many of the material averments in the bill, which are admitted by the answer of the defendant Boyle, are entirely with-P1>0°f as against the infant defendants, we can find nothing in the case to sustain the decree of the C0U1,£ qei0Wi At the time of the filing of the MU, these complainants were lessees of the premises, hut before the cause was brought to a hearing, their character of lessees had ceased, and they had, at the time of the hearing, no right or interest in the premises whatever, as appeared from the testimony of the owner of the soil. It is true, the lease contained a provision for renewal, but upon what terms and for what length of time the lease should be renewed, it is altogether silent, and we think that this provision or covenant is void for uncertainty, as it appears in the lease, and there is nothing in the evidence before us which enables us to render it certain. This principle is fully discussed and established in the following cases : Blayden vs. Bradlea, 12 Vesey, 466; Clinan et al. vs. Cooke et al., 1 Sch. & Lef. 22; Bromley vs. Jeffries, 2 Verm. 415; Bailey et al. vs. Ogden et al., 3 John. 399; Clerk vs. Wright, 1 Atk. 12.

Besides, the renewal was to depend on the fact of the ownership of the land remaining unchanged, and the proof shows that the land had been sold and conveyed by the lessor, Whitney, to the witness, Burrell, during the term for which the lease was granted.

The question, then, is whether the complainants are entitled to the relief which is prayed for in the bill, when it is shown that they have ceased to have any interest in the premises to which the injunction extended. While they were lessees, they might, in a proper case, invoke the protection of a court of equity to prevent waste or irreparable injury ; but when not only the defendants, but the complainants themselves, have no right, title or interest whatever in the land covered by the injunction, it would, we think, be useless application — nay, a prostitution of the powers of the court. The complainants have no rights to invaded or protected, although, when the bill filed, they had such rights.

The general rule is, that the parties really in interest must be before the court; and if a complainant or complainants, (if there be more than one,) after the commencement of the suit, parts with his or their interest in the subject, by assignment or otherwise, the suit cannot be proceeded in until the proper parties are brought in, if the objection be urged. (Williams vs. Kinder, 4 Vesey, 387.) The defendant, in such case, may apply to the court for an order that the assignee or party in interest file a supplemental bill, in the nature of a bill of review, by a certain day, or in default thereof that the bill be dismissed. Garr vs. Gomez, 9 Wend. 649.

We are satisfied that, in this case, the court should not have rendered a decree perpetuating the injunction, and it could have rendered no other relief, because that was the specific relief prayed for, and the rule is well settled, that where some specific relief is prayed, and is not accompanied with a prayer for general relief, if the whole case made will not justify the granting of the particular relief applied for, the bill must be dismissed, although the complainant may have been entitled to some other aid. Vide 13 Vesey, 119; 2 Young & Jervis, 33; 1 John. Ch. R. 117; 2 Peters, 595; 1 John. 559; 2 Paige, 396.

The proper course to have been pursued by the court below was to dismiss the bill without costs; for it was shown that the defendants had committed trespass, if not waste, on tlie premises during tlie complainant’s term.

<ppe ¿ecree below must be reversed, and the bill dismissed without costs, and without prejudice to the rights of the complainants to bring an action at law for the lead ore taken by the defendants, as they may be advised.