HOLDEN, C.J.
September 18, 1943, Bernice H. Gilbert and Harriett M. Jarrett commenced a suit in the District Court for Boundary County against the Pack River Lumber Company, a corporation, alleging, among other things, they were the owners of a certain tract of timber land located in that county, the primary purpose of the suit being to permanently restrain and enjoin the company from cutting and removing timber from said tract of timber land. October 9, 1943, plaintiffs Gilbert and Jarrett moved that court for an order requiring defendant to show cause why it should not be temporarily enjoined and restrained from cutting and removing the timber from said lands, the application being supported by affidavits. On the same day the application was granted and an order to show cause was issued, hearing being noticed for
October 12, 1943. On that day the matter was heard, each party being represented by counsel. At the conclusion of the hearing, an order was entered directing the issuance of an injunction, pursuant to which an injunction issued October 13, 1943, enjoining and restraining the Pack River Lumber Company, pending final hearing of the cause on its merits, from removing the timber from said tract of timber land. On the next day, to-wit, October 14, 1943, an order was filed (dated October 13, 1943) entitled “Order Allowing Supersedeas Bond or Staying of Writ of Injunction,” by the terms of which, in substance and effect, the injunction theretofore issued, as aforesaid, was ordered stayed, effective upon the giving of a bond in the sum of $5,000.00, which was thereafter promptly given, as required.
October 25, 1943, Bernice H. Gilbert and Harriett M. Jarrett, plaintiffs in said suit in said district court, made application to this court seeking a review by this court of the said action of the said district court in staying the said injunction, issued as aforesaid, alleging, among other things, that said “order allowing Supersedeas Bond or Staying of Writ of Injunction out of the said district court was and is illegal and void and in excess of the jurisdiction vested in said (the said district) court, or the judge thereof.”
October 26, 1943, an order was entered herein directing the issuance of a writ of review to review the said action of the Hon. Ed. S. Elder, pursuant to which a writ of review, in the usual form, was issued, directed to the said the Hon. Ed. S. Elder, the judge of the said district court, returnable November 4, 1943. November 2, 1943, a transcript of the record and proceedings in said cause commenced and pending in said district court as aforesaid, was certified into this court as required by sec. 13-205, I.C.A. November 4, 1943, the Pack River Lumber Company, the real party in interest, filed its answer, traversing the material allegations of the petition.
“The review upon this writ can not be extended further than to determine whether the inferior tribunal, . . . has regularly pursued the authority of such tribunal . . .” (Sec. 13-208, I.C.A.;
Sweeny v. Mayhew,
6 Ida. 455, 56 P. 85;
McConnell v. State Board, etc.,
11 Ida. 652, 83 P. 494;
Lansdon v. State Board of Canvassers,
18 Ida. 596, 111 P. 133;
Northwest Light etc. Co. v. Alexander,
29 Ida. 557,
160 P. 1106;
Beus v. Terrell,
46 Ida. 635, 269 P. 593;
State Ins. Fund v. Hunt,
52 Ida. 639, 17 P. (2d) 354;
Hawley v. Bottolfsen,
61 Ida. 101, 98 P. (2d) 634, 636.)
The Pack River Lumber Company claims the right to continue to cut and remove timber from the tract of land in question upon an alleged offer by the company to purchase the tract and an alleged acceptance of such offer by petitioners, which, of course, concedes petitioners were, prior to the alleged offer and alleged acceptance, the owners of the tract. By the time the cause would be tried on its merits, the company might have cut and removed all the timber from the tract, so that if judgment should finally go against the company and in favor of the petitioners upon a trial of the cause on its merits, the Company would, indirectly, have compelled petitioners to sell their property to it whether they would or not, and accept whatever monetary consideration it was willing to pay, after it got the timber, or sue at their own expense to recover damages. ■
Moreover, the record discloses that what the lumber company is principally interested in, is getting the timber standing on the land. Hence, the staying of the temporary injunction gives the company an opportunity to get that, the principal relief it seeks, in advance of the trial of the case. Neither plaintiff nor defendant should be given the principal relief sought in advance of the trial of the cause. As this court in
Rowland v. Kellogg Power
&
Water Co.,
40 Ida. 216, 225, 233 P. 869, held:
“A
temporary injunction will not usually be allowed where its effect is to give the plaintiff the principal relief he seeks without bringing the cause to trial, neither should a preliminary injunction be dissolved (nor stayed, we think) where its effect would be such as to give the defendant the relief he seeks without bringing the cause to trial.”
It is contended, however, that cutting and removing the timber from the tract of land in question does not constitute an irreparable injury in that petitioners have an adequate remedy in the form of an action at law for damages. Touching that matter, we direct attention to
Pardee v. Camden Lumber Co.
(W.Va. Supreme Ct. of Appeals), 70 W.Va. 68, 73 S.E. 82, 43 L.R.A. (N.S.) 262, a case, in its facts, similar to the case at bar. In the course of
discussing the question as to whether cutting and removing timber is adequately remediable by an action at law, the West Virginia court expresses itself thus:
“. . . we must see to what extent the remedies afforded by courts of law and equity protect and vindicate the right of an owner of property to keep it in such condition as he desires. If we find the general object to be the maintenance of this right respecting all other kinds of property, we must necessarily say it ought to extend to the right of an owner of timber to allow it to stand upon his land in its natural state as long as he desires it to do so. Timber cut down and converted into mere logs and lumber is plainly not the same thing as standing timber. It is equally manifest that the legal remedies are wholly inadequate to reconvert logs and lumber into live, standing, growing trees.”
And, following a lengthy discussion of the question in all its phases, the West Virginia court held:
“As growing timber is part and parcel of the land on which it stands, wrongful destruction thereof is an injury to the land itself, not adequately remediable by an action at law.” (See also
Shipley v. Ritter,
7 Md. 408, 61 Am. Dec. 371;
Musch v. Burkhart,
(Iowa) 12 L.R.A. 484;
Ryan v. Weiser Valley Land etc. Co.,
20 Ida. 288, 297, 118 P. 769.
While “The term ‘due process of law’ is not susceptible of exact or. comprehensive definition” (16 C.J.S., sec. 567, p. 1140). “. . .
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HOLDEN, C.J.
September 18, 1943, Bernice H. Gilbert and Harriett M. Jarrett commenced a suit in the District Court for Boundary County against the Pack River Lumber Company, a corporation, alleging, among other things, they were the owners of a certain tract of timber land located in that county, the primary purpose of the suit being to permanently restrain and enjoin the company from cutting and removing timber from said tract of timber land. October 9, 1943, plaintiffs Gilbert and Jarrett moved that court for an order requiring defendant to show cause why it should not be temporarily enjoined and restrained from cutting and removing the timber from said lands, the application being supported by affidavits. On the same day the application was granted and an order to show cause was issued, hearing being noticed for
October 12, 1943. On that day the matter was heard, each party being represented by counsel. At the conclusion of the hearing, an order was entered directing the issuance of an injunction, pursuant to which an injunction issued October 13, 1943, enjoining and restraining the Pack River Lumber Company, pending final hearing of the cause on its merits, from removing the timber from said tract of timber land. On the next day, to-wit, October 14, 1943, an order was filed (dated October 13, 1943) entitled “Order Allowing Supersedeas Bond or Staying of Writ of Injunction,” by the terms of which, in substance and effect, the injunction theretofore issued, as aforesaid, was ordered stayed, effective upon the giving of a bond in the sum of $5,000.00, which was thereafter promptly given, as required.
October 25, 1943, Bernice H. Gilbert and Harriett M. Jarrett, plaintiffs in said suit in said district court, made application to this court seeking a review by this court of the said action of the said district court in staying the said injunction, issued as aforesaid, alleging, among other things, that said “order allowing Supersedeas Bond or Staying of Writ of Injunction out of the said district court was and is illegal and void and in excess of the jurisdiction vested in said (the said district) court, or the judge thereof.”
October 26, 1943, an order was entered herein directing the issuance of a writ of review to review the said action of the Hon. Ed. S. Elder, pursuant to which a writ of review, in the usual form, was issued, directed to the said the Hon. Ed. S. Elder, the judge of the said district court, returnable November 4, 1943. November 2, 1943, a transcript of the record and proceedings in said cause commenced and pending in said district court as aforesaid, was certified into this court as required by sec. 13-205, I.C.A. November 4, 1943, the Pack River Lumber Company, the real party in interest, filed its answer, traversing the material allegations of the petition.
“The review upon this writ can not be extended further than to determine whether the inferior tribunal, . . . has regularly pursued the authority of such tribunal . . .” (Sec. 13-208, I.C.A.;
Sweeny v. Mayhew,
6 Ida. 455, 56 P. 85;
McConnell v. State Board, etc.,
11 Ida. 652, 83 P. 494;
Lansdon v. State Board of Canvassers,
18 Ida. 596, 111 P. 133;
Northwest Light etc. Co. v. Alexander,
29 Ida. 557,
160 P. 1106;
Beus v. Terrell,
46 Ida. 635, 269 P. 593;
State Ins. Fund v. Hunt,
52 Ida. 639, 17 P. (2d) 354;
Hawley v. Bottolfsen,
61 Ida. 101, 98 P. (2d) 634, 636.)
The Pack River Lumber Company claims the right to continue to cut and remove timber from the tract of land in question upon an alleged offer by the company to purchase the tract and an alleged acceptance of such offer by petitioners, which, of course, concedes petitioners were, prior to the alleged offer and alleged acceptance, the owners of the tract. By the time the cause would be tried on its merits, the company might have cut and removed all the timber from the tract, so that if judgment should finally go against the company and in favor of the petitioners upon a trial of the cause on its merits, the Company would, indirectly, have compelled petitioners to sell their property to it whether they would or not, and accept whatever monetary consideration it was willing to pay, after it got the timber, or sue at their own expense to recover damages. ■
Moreover, the record discloses that what the lumber company is principally interested in, is getting the timber standing on the land. Hence, the staying of the temporary injunction gives the company an opportunity to get that, the principal relief it seeks, in advance of the trial of the case. Neither plaintiff nor defendant should be given the principal relief sought in advance of the trial of the cause. As this court in
Rowland v. Kellogg Power
&
Water Co.,
40 Ida. 216, 225, 233 P. 869, held:
“A
temporary injunction will not usually be allowed where its effect is to give the plaintiff the principal relief he seeks without bringing the cause to trial, neither should a preliminary injunction be dissolved (nor stayed, we think) where its effect would be such as to give the defendant the relief he seeks without bringing the cause to trial.”
It is contended, however, that cutting and removing the timber from the tract of land in question does not constitute an irreparable injury in that petitioners have an adequate remedy in the form of an action at law for damages. Touching that matter, we direct attention to
Pardee v. Camden Lumber Co.
(W.Va. Supreme Ct. of Appeals), 70 W.Va. 68, 73 S.E. 82, 43 L.R.A. (N.S.) 262, a case, in its facts, similar to the case at bar. In the course of
discussing the question as to whether cutting and removing timber is adequately remediable by an action at law, the West Virginia court expresses itself thus:
“. . . we must see to what extent the remedies afforded by courts of law and equity protect and vindicate the right of an owner of property to keep it in such condition as he desires. If we find the general object to be the maintenance of this right respecting all other kinds of property, we must necessarily say it ought to extend to the right of an owner of timber to allow it to stand upon his land in its natural state as long as he desires it to do so. Timber cut down and converted into mere logs and lumber is plainly not the same thing as standing timber. It is equally manifest that the legal remedies are wholly inadequate to reconvert logs and lumber into live, standing, growing trees.”
And, following a lengthy discussion of the question in all its phases, the West Virginia court held:
“As growing timber is part and parcel of the land on which it stands, wrongful destruction thereof is an injury to the land itself, not adequately remediable by an action at law.” (See also
Shipley v. Ritter,
7 Md. 408, 61 Am. Dec. 371;
Musch v. Burkhart,
(Iowa) 12 L.R.A. 484;
Ryan v. Weiser Valley Land etc. Co.,
20 Ida. 288, 297, 118 P. 769.
While “The term ‘due process of law’ is not susceptible of exact or. comprehensive definition” (16 C.J.S., sec. 567, p. 1140). “. . . it has been said that there can be no doubt of its meaning when applied to judicial proceedings, and as so applied due process of law has been variously held to mean a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial.” (16 C.J.S., sec. 567, b., p. 1143.)
Here, of course, the Pack River Lumber Company was not interested in the land itself. It was, and is, as a matter of fact, interested solely in the timber standing on the land — cutting and converting it into merchantable lumber. And, as above pointed out, the effect of the order complained of by petitioners was to give the company all the relief it really sought on the hearing of an application, which, by no stretch of the imagination,- could be held to be a trial of the cause on its merits within the meaning of the “due process” rule. Hence, we conclude the district court, under all the facts and circumstances of this case,
exceeded its jurisdiction. Judgment will, therefore, be entered annulling the order of the court herein reviewed, with costs to the petitioners.
Ailshie, Givens and Dunlap, JJ., concur.