Weatherby v. Wood

E; Darwin Smith, J.

I have no doubt that the cutting of the timber in question was waste. It was not cut in the ordinary course of husbandry, for the purpose exclusively of clearing the land for cultivation, or for firewood, but was cut to be sawed into lumber for sale in" the market. So far as the injunction stayed the further cutting of the timber, it ivas properly granted, and should clearly be. retained. I have had some doubt in respect to the timber previously cut, and now remaining upon the premises. In Watson agt. Hunter (5 Johns. Ch. 169), in a case where the waste consisted in cutting timber, as in this case, Chancellor Kent refused an injunction in respect to the timber cut, and retained it to prevent future waste, holding that the party injured should be left to his action of trover or trespass at law for the timber cut. The cases cited in the opinion from the English cases, were all in conflict with the decision of the learned chancellor in that case.

• In the opinion of the chancellor, the case of Jesus College agt. Bloom (3 Atk. 262), was cited, in which Lord Hardwicke held, that “ when the bill was filed for an injunction to prevent waste, and for waste committed, the court to prevent a double suit, would award an injunction to prevent future waste, and decree an account and satisfaction for what was past.” So in 3 Atkins, 311, it was held that a party might come into equity to stay future waste, and also to be entitled to an account for waste committed (and see 7 Vesey, Jr. 78); and in 2 Pierre Wms., 240, also cited, it was held that “ the right to the timber cut might be pursued in chancery as well as by trover at law and in Garth agt. Colton (1 Vesey Sen. 528). The same view in regard to sending the party aggrieved by the waste to a court of law, was adopted by Chancellor Walworth, in the case of Livingston agt. Reynolds, reported in 26 Wend. 115, and same case 2 Hill, 157. But the chancellor’s decision was reversed in this case in the court for the correction of errors, in which it was held that the injunction which he dissolved ought to have been continued, and in the opinion of the president of the court, it was said “ an account and satisfaction of the waste already committed, should have been decreed, and the injunction should have been rendered absolute a.nd perpetual.” In 3 Sandf. Ch. Rep., it was held that “ proof of a single instance of waste entitled the com-' plainant to a continuance of the injunction, and with the latter to an accounting.”

I think such is now the proper course to be taken, particularly since the constitution of 1846 and the Code, have vested equity powers in the supreme court, and the law and equity are administered by the same tribunal. There is, or should be, no further turning a party out of court, and to some other forum, who shows a good cause .of action. Belief is now given according to the right of action (Ewen agt Pease, 20 N. F. 62). This court has acquired jurisdiction as a court of equity, of the cause of action to stay future waste, and has an incidental power in the same action to decree an account for the waste committed. If I were to dissolve this injunction in respect to the timber cut, it would be upon the principle repudiated by Lord Elden in 18 Vesey, 186, in which he said the practice now was, “ not to put the plaintiff to come here for an injunction, and to go to law for damages.” But if the plaintiff was driven to commence an action at law for the timber cut down before- the commencement of the suit, it would be a matter of course to hold the defendant to bail for the amount of such timber, in an action of trespass or trover.

I have in view of this fact, come to the conclusion, as it is probably best for both parties that this timber be soon disposed of, to modify the injunction so far as relates to the timber cut, and retain it as to further cutting except for "necessary firewood, upon the defendant’s giving security by bond or undertaking in the sum of $2,000, with sureties to be approved by the county judge of Steuben, or a justice of this court, conditioned to account for such timber, if the court should ultimately so adjudge and order, and to abide by and perform such order and decree or judgment as shall be made by this court in respect thereto. If the defendant is responsible it will be no hardship to give such security, and if he is not, I think he ought not to be allowed to remove and dispose of the timber without such security.

The injunction will be so modified, with costs to abide the event.