Louisville & Nashville Railroad v. Gibson

Glen, C.

The bill of complaint in this case, so far as it sought to enjoin the commission of .future trespasses upon the lands therein described, stated a case within the provisions of section 1469 of the Revised Statutes, and to> that extent entitled appellant to a 'temporary injunction át the hearing of its application, therefor. Appellant, however, was not entitled upon the case made by its bill to any further relief. The bill ‘did not allege that appellant was the owner'of the lands at the time appellees were alleged to have cut the five hundred cypress logs, more or less, therein alleged to be cut and lying upon the lands, nor that appellant was 'the owner of the log’s so cut. Appellant, therefore, was not clearly shown to have any interest in the logs cut, entitling it to enjoin their removal. Sullivan vs. Moreno, 19 Fla. 200. The demurrer filed to' the bill, and sustained' by the court, was a general demurrer for want of equity, and extended to' the eráire bill. For that reason it ought not to have been sustained by the court, as the bill was not entirely wanting’ in equity. The right to relief rested wholly upon the statute, and under the decision in Wiggins v. Williams, 36 Fla. 637, 18 South. Rep. 859, the bill could not be maintained in so far as it sought an ascertainment of damages sustained by appellant on account of'the alleged prior trespasses, and a decree for the payment thereof, even if its allegations had been sufficient to show that appellant was the owner of the lands at the time the alleged trespasses were committed, but that was not'ground for sustaining a general demurrer to the entire bill. Durham v. Stephenson, 41 Fla. 112, 25 South. Rep. 284.

The decree refusing 4 temporary injunction, to the extent indicated, and the decree sustaining the demurrer and dismissing the bill should be reversed, and further proceedings had in accordance with this opinion.

Hooker, C., and Maxwell, C., concurred.

Per Curiam.

The foregoing opinion has been examined by the court and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause.