Fleming v. Collins

2 Del. Ch. 230

Opinion

Harrington, Chancellor.

The verdict upon the issue concludes the question of title, and leaves nothing to be decided but whether waste, such as is the subject of equitable jurisdiction, has been committed, and the amount of it. The cutting is undisputed, and the amount and the value of the timber cut is proved. That it is the subject of equity jurisdiction there can be no doubt. For, the cutting of timber is an injury irreparable in its nature, and by whomsoever committed is remediable in equity. The remedy by injunction in such cases, has been greatly extended, and is applied even to restrain trespasses which are irreparable. Coop. Eq. 152 ; Eden on Inj. 199; 6 Johns. Ch. R. 497. The Court having jurisdiction to restrain waste will do complete justice by decreeing an account and satisfaction for the waste committed; and the party committing it having died, the liability to account survives against his administrators. In the present cáse there is already sufficient proof for a final decree ; but if the parties desire an opportunity for further proof, I will direct an account.

Both parties preferred a decree upon the present proofs; and, accordingly, a decree was entered against the administrators of Joshua S. Layton, deceased, for $125.00, as the value of the waste.