Arment v. Hensel

31 P. 464, 5 Wash. 152, 1892 Wash. LEXIS 25

• Court: Washington Supreme Court
• Decided: November 1, 1892
• Docket: No. 664
• Status: Published

Opinions

The opinion of the court was delivered by

Stiles, J.—The

parties to this action are rival claimants to a certain tract of land embraced within the lands forfeited to the United States by the Northern Pacific Railroad Company, by the act of congress approved September 29, 1890, entitled “An act to forfeit certain lands heretofore granted for the purpose of aiding the construction of railroads, and for other purposes,” 26 St. at Large, 496. Each has made his application to the local land officers to purchase under the terms of the act. Respondent alleged and proved that he was in possession of the land; that appellant had cut thirty cords of wood therefrom, and threatened to cut more, to the permanent injury of the freehold; that appellant was insolvent, etc. The main purpose of the action was to obtain an injunction to restrain further cutting of timber, pending the determination of the question of right to purchase in the land office.

Suit was brought under Code Proc., § 663, which reads:

‘ ‘ When any two or more persons are opposing claimants under the laws of the United States to any land in this state, and one is threatening to commit upon such land waste which tends materially to lessen the value of the inheritance, and which cannot be compensated by damages, and there is imminent danger that unless restrained such waste will be committed, the party, on filing his complaint and satisfying the court or judge of the existence of the facts, may have an injunction to restrain the adverse party. In all cases he shall give notice and bond as is provided in other cases where injunction is granted, and the injunction when granted shall be set aside or modified as is provided generally for injunction and restraining orders.”

Judgment was entered for the plaintiff.

The main contention now made is, that no such state of things exists as would ordinarily justify an injunction. The title is admitted to be in the United States. Plaintiff showed nothing but possesson and a claim of right to purchase. The defendant was not alleged or admitted to be a person rightfully upon the land or any other than a trespasser. The complaint was based upon an alleged ‘ ‘ waste ’ ’ which can be committed only by a person rightfully in possession by virtue of a temporary or partial estate, as a tenant. Waste may be enjoined. But ‘ trespass, ” on the other hand, is not ordinarily remedied by injunction, except in peculiar eases.

All this might have been urged with prospect of success, but for the statute which is quoted above. This statute speaks of “waste which tends materially to lessen the value of the inheritance, and which cannot be compensated by damages. • ’ But that it is not the technical ‘ ‘ waste ’ ’ known to the real property system of England and this country is evident from the fact that it is presupposed to be committed by persons who are mere hostile claimants under the laws of the United States, without regard to title, or rightfulness of claim, or possession. So in regard to the damages spoken of; the impossibility to compensate does not refer to the insolvency of the person committing the waste, nor to the magnitude • of the injury. Money damages will compensate almost any imaginable injury to land, but this statute assumes that the peculiar character of land, which is its subject, will afford instances where money will be inadequate, in some other sense than that of insufficiency. The removal of trees from land still the property of the government, and therefore probably in its natural condition, is the very first injury which would tend to materially lessen the value of the inheritance likely to be committed by persons entering thereon; and damages will not compensate their loss in the sense intended by the statute.

Therefore the injunction must stand, and the judgment is affirmed.

Anders, C. J., and Hoyt and Scott, JJ., concur.