Catching v. Terrell

10 Ga. 576

• Court: Supreme Court of Georgia
• Decided: November 15, 1851
• Docket: No. 84
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

The bill contains a charge of trespass by entering repeatedly upon the lands of the plaintiff, and throwing down his fences, so that stock of all kinds had access to the fields, and destroyed the growing crops thereon ; that that portion of the plantation which is more immediately exposed, is sown down in wheat, for the purpose of raising food for the support of plaintiff’s family, and the loss of which, it is alleged, would subject the plaintiff to great inconvenience and irreparable injury.

[1.] Is this such a trespass as a Court of Equity ought to interfere, by injunction, to restrain ? Wethink not. And for the reason, that- it is one for which the ordinary legal remedy in a Court of Law, can afford adequate satisfaction. It is the policy, as well as the uniform practice of the Courts, never to introduce the Chancery remedy, or a substitute for the Common Law redress, by action and assessment of damages by the Jury, except in strong and aggravated cases, and where the mischief extends to the very substance and value of the estate ; or-where the delay would be ruinous, or just compensation rendered impracticable, from the uncertainty of the proof.

[2.] None of these reasons exist for drawing this case within the cognizance of Chancery. Suppose the plaintiff be prevented entirely from making a crop, the worst that can befal him, it is not pretended but that the defendant is abundantly able to respond in money for this deprivation, even if the plaintiff were compelled to employ hands to watch this road fence continually, to put it up as fast as it is pulled down, the hire of these hands, together with smart money, might be sufficiently secured by the verdict of the Jury. For this can be so modeled as to make it adequate as a check as well as a recompense.

Chancellor Kent, in the leading case upon the subject, of Jerome vs. Ross, (7 Johns. Ch. R. 314,) puts the identical case under consideration, as one which will be left to pecuniary compensation. He says: “a troublesome man may harass his neighbor, by throwing down his fences and turning cattle upon his grounds, or by passing over them, or otherwise annoying him; but it is to be presumed that repeated recoveries for damages, with the punishment of costs and such smart money as a Jury would naturally give, would soon effectually correct any such disposition. At any rate I do not know that a Court of Equity has ever interfered merely to correct such a practice ; and it actually would require very strong evidence of the inefficacy of the ordinary legal remedies for remuneration, as well as of correction, before this Court would venture to assume a jurisdiction hitherto unknown.”

Believing therefore, as we do, that the peculiar circumstances disclosed in this bill do not warrant, much less imperatively demand, the conservative remedy which is invoked by the plaintiff, we cannot sustain the injunction. Had it been stated thatthere was an orchard of fruit trees, or of mulberries for the feeding of the silk worm, which was exposed to the depredation of the stock let into this plantation by reason of the trespass complained of, our conclusion might have been different.

[3.] It is charged in the bill, that the legal remedy is too tardy, and that irreparable mischief will ensue if the relief sought is not granted. I would remark, that the mere allegation of a complainant, that irremediable damage will ensue, is not sufficient; but to entitle the party to an injunction, the facts must be set forth to show that the apprehension of injury is well founded.

It is the opinion of this Court, that the Circuit Judge erred in overruling the motion to dissolve the injunction; and that the judgment below be reversed, upon the ground that the trespass complained of, was not of such a character as to authorize the interposition of a Court of Equity, to restrain its commission.