Cowles v. Shaw

2 Iowa 496

• Court: Supreme Court of Iowa
• Decided: June 15, 1856
• Status: Published

Opinion

Wright, C. J.

It will be unnecessary to determine in this case, whether, under our Code, a party can unite with his petition to recover for certain trespasses committed,, a bill for an injunction to restrain the further commission of such trespass. This case can be determined without touching that question, for we have no hesitation in saying, that the petition for the injunction, presents no such case as warrants the ordering of any such writ.. For aught that appears, the plaintiffs had a complete, perfect, full, and adequate remedy at law, for any and all trespasses these defendants had, or might commit. They are not alleged to be insolvent. There is nothing to show that the injury about to be committed, was of such an irreparable nature, as to justify the interposition of the chancery power of the court, to restrain its commission ; or that an injunction was necessary, even to avoid a multiplicity of suits.

Our Code gives to the party injured, for any willful trespass in injuring his timber, treble damages, and also makes the guilty party liable to indictment, and punishment by fine, not exceeding five hundred dollars, or imprisonment in the county jail not more than one year, or by both such fine and imprisonment, at the discretion of the court. Sections 2137, 26, and 84. And we adopt the language of Chancellor Kent, in commenting on a similar statute of New York, and say, there is the less necessity for the interference of the chancellor in such cases, where the party is, by the statute, given so complete a remedy in his action at law. Stevens v. Beekman, 1 Johns. Ch. 318. We do not say, that there may not be cases, where the legal remedy .would be incomplete, and in which an injunction might properly issue. For instance, as above suggested, the defendants might be entirely insolvent; the trespass might grow into a nuisance or waste; numberless suits might have to be brought, in order to make the remedy complete; the trespass might be by a party occupying a fiduciary relation; or the injury of such a character, that the loss would be irreparable, and not to be compensated in dollars and cents; and in any such, or similar cases, an injunction might be proper. But we are aware of no case, nor yet any principle, which will sustain an injunction in any ordinary case of trespass, as this appears to have been. Without referring to the authorities in detail, we may say, that those cited by appellants’ counsel, are conclusive. See, also, Eden on Injunctions by Waterman (3d ed.), 229, 30, 31, 32, 33, 34, and notes; and the well considered case of Jerome v. Ross, 7 Johns. Ch. 315; as also Livingston v. Livingston, 6 Johns. Ch. 497, referred to by appellees, but which fully sustains the opposite view. Plaintiffs claim that the demurrer to the bill, was filed after an order made to answer, and was therefore too late; and for that reason, properly overruled. If it was true, however, that the demurrer was filed too late, it could not aid plaintiffs. If complainants’ •bill contains no equity, the defect is fatal, even on final bearing, or in the appellate court. Kreichbaum v. Bridges, 1 Iowa, 14. And in addition to this, the motion to dissolve the injunction, was certainly filed in time, and we are clearly of tbe opinion, that it should have been sustained, to say nothing of the subsequent demurrer.

Decree reversed.