Hihn v. Peck

18 Cal. 640, 1861 Cal. LEXIS 260

Opinion

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

Bill for partition, and for injunction against cutting timber trees by the defendants. The defendants being tenants in common had a right to the enjoyment of the common estate, and to cut timber and use or dispose of it, at least, to an extent corresponding to their share of the estate. No insolvency is averred ; nor that they are exceeding this share, nor any other facts which entitle them to this injunction. It is not necessary to decide whether these facts as to insolvency and excessive use of the timber would entitle the plaintiffs to the relief they seek. It is certain that upon this bill they are not so entitled.

Order granting injunction reversed, the injunction dissolved, and cause remanded.