Wiggins & Johnson v. Williams

36 Fla. 637

• Court: Supreme Court of Florida
• Decided: June 15, 1895
• Status: Published

Opinion

Mabry, C. J.:

The interlocutory orders appealed from in this case are those made on June 13th and July 1st, 1891, and we are confined to them at this time. Mann vs. Jennings, 25 Fla. 730, 6 South. Rep. 771; Lenfesty vs. Coe, 26 Fla. 49; 7 South. Rep. 2. The order of June 13tk determined that appellee (complainant below) was entitled to recover damages by reason of the removal by appellants of turpentine from the four and one-half crops of boxes on the lands, described in. the bill of complaint, both before and since the institution of the suit, and the master was ordered to take an account of said damages from the 20th of September, 1890, when, it is alleged, appellants took possession of said turpentine boxes, until the hearing, and in taking the account the master was directed to use the pleadings and proofs then in the cause, and such other evidence as he might deem advisable, or that the parties might offer. After the cause was at issue, an examiner named was appointed to take the testimony therein, and there was also an order directing the master, but not designating any one as such, to take testimony and report as to the sufficiency of a bond that had been executed in the case by appellants under the order of the court. The examiner named acted, without objection to the parties, as master in taking testimony as to the sufficiency of the bond, and such testimony extended to the entire merits of the case. By agreement of counsel, the testimony taken on the question of the sufficiency of the bond was reported to the court as the testimony on all the issues in the case, and it was ■ upon such testimony that the decree of -June 13th was made.

It is insisted for appellants that the testimony did not authorize this decree, and further that the Legislature could not confer upon the Circuit Court, exercising chancery jurisdiction, power to award damages for a mere trespass. The inhibition of such legislation, it is claimed, is found in the third section of the Bill of Rights, that “the right of trial by jury shall be secured to all, and remain inviolate forever.” Counsel also claims that the court erred in that portion of the order directing the master to take further evidence in 'stating- the account, in view of the agreement of counsel reported by the master.

The case arose since the adoption of the act of 1889 (Chapter 3884), the second section of which provides “that courts of chancery shall entertain suits by any person or persons claiming any timbered lands in this State to.enjoin trespasses on said lands by the cutting of trees thereon or removal of logs therefrom, or by boxing or scraping the said trees for the purpose of making turpentine or by removal of turpentine therefrom; and in such suits the said couris shall cause an account to be taken of the damage to the complainant from any of said trespassing before o- aftei the institution of the suit, and decree payment of the. amounts shown due upon such accounting by the defendant or defendants.” The title of f.h;¡-: act is “An act to extend the powers of the couris of chancery ini his diase,” The testimony, conceded to be proper for the consideration of t-lie court, surstains, in our opinion, the claim of appellee to the four and one-half crops of turpentine boxes described in the bill. The deed from appellee and R. T. Hall to Ellis, Young & Co. does not embrace the four and one-half crops, and the written leases with the endorsements thereon, admitted to be proven, and in evidence, show title in appellee.

The answer sets up a defense that appellee and Hall sold all the property employed by them in their turpentine business to Ellis, Young & Co., who sold the same property to appellants, and that through inadvertence the four and one-half crops in question here were left out of the deed to Ellis, Young & Co. Appellants’ deed from Ellis, Young & Co. does not embrace the said four and. one-half crops, and while there is some testimony, brought out on cross-examination of a witness for appellee, tending to show that appellee intended to convey all of his property employed in the turpentine business, including the crops in question, to Ellis, Young & Co., still the record evidence supports appellee’s title, and there is no sufficient pároL testimony to overcome it. Appellants did not testify in the case, and, in fact, offered no evidence to sustain their allegation that they purchased from Ellis, Young' & Co. the crops claimed by appellee. The testimony places appellants in the attitude of trespassers without claim or color of right upon the lands on which the boxed trees claimed by appellee are situated. The sc,com! contention for appellants under the decree of June IHth in, that the statute directing an account of damages for a mere trespass upon laud in a. court of chancery is unconstitutional, us such causes of action were triable by jury according to the course of ¡he common law, and secured to the partios by ¡he third section of ’he Bill of Rights in our Constitution. By ¡he second section of the statute referred to it will be seen, that claimants of timbered lands are given the right to invoke the injunctional power of the court to prevent the cutting of trees thereon, the removal of logs therefrom, the boxing or scraping the trees for the.purpose of making turpentine, or the removal of turpentine from the land, and in such suits-the court is directed to cause an account to be taken of the damage to the complainant resulting from the trespasses before or after the institution of the suit, and to decree payment of the amounts shown to be due upon such accounting. In the case of Reddick vs. Meffert, 32 Fla. 409, 13 South. Rep. 894, the second section of the act in question, as applied to the facts of that case, was recognized as being valid, though its validity to any extent was not there questioned and no claim for damages was involved. The question presented in the present case demands a consideration of the constitutional guaranty of a jury trial for the assessment of damages under the conditions disclosed by this record. The third section of the Bill of Rights does not grant the right of trial by jury, but secures or guarantees such right existing at the time of the adoption of the Constitution. We said in Buckman vs. State ex rel., 34 Fla. 48, 15 South. Rep. 697, that “when the right of trial by jury is secured by constitutional provision in general terms like ours, and without any qualification or restriction, it must be understood as retained in all those cases that were triable by jury according to the course of the common law. The provision in the-first Constitution, framed in 1838, that the right of trial by jury shall forever remain inviolate, contemplated, without doubt, a continuation of jury trials in all cases where such was the practice at the common law, and there is nothing in the subsequent Constitutions to indicate a change of meaning in this respect.” We have also held that the tenth section of the Bill of Rights was designed as a guaranty and protection of the citizen against a trial, except in certain enumerated cases, unless upon prer sentment or indictment by such grand jury as was ■shown at the common law. English vs. State, 31 Fla. 340, 12 South. Rep. 691; Donald vs. State, 31 Fla. 255, 12 South. Rep. 695. The authorities, with great uniformity, hold that constitutional provisions like ours were designed to preserve and guarantee the right of trial by jury in proceedings according to the course of -the common law as known and practiced at the time of the adoption of the Constitution. Flint River Steamboat Co. vs. Roberts, 2 Fla. 102, S. C. 48 Am. Dec. 178 and notes; Blanchard vs. Raines, 20 Fla. 467; Tabor vs. Cook, 15 Mich. 322; Plimpton vs. Town of Somerset, 33 Vt. 283; North Pennsylvania Coal Co. vs. Snowden, 42 Penn. St. 488, S. C. 82 Am. Dec. 530 and note; Norris’ Appeal, 64 Penn. St. 275; Watts vs. Griffin, 6 Littell (Ky.) 244.

Courts of chancery were not, strictly speaking, courts of common law, their jurisdiction and practice being derived principally from the civil law where no jury was employed, hence the guaranty of a trial by jury has no reference to such courts in their sphere of equity jurisdiction, nor does it extend to all cases at law, as it is perfectly clear that there were many proceedings in common law courts in which juries were not used. Proceedings in laying out highways and in assessing damages for the taking of private property for public use (Beekman vs. Saratoga & Schenectady R. R. Co., 3 Paige, 45, S. C. 22 Am. Dec. 679; Koppikus vs. State Capitol Commissioners, 16 Cal. 248; Ross vs. Irving, 14 Ill. 171), the proceedings in many inferior courts and many summary proceedings in nisi prius courts, were without jury, and the guaranty of jury"trial has no application to them. It is not necessary to go into an enumeration of such cases. A principle has been •established in the jurisprudence of this country, that new rights unknown to the common law procedure of trial by jury may be created, and provision made for their determination in the absence of a jury, without violating- the constitutional provision we are considering. 13at while it may be competent for the Legislature to create new tribunals without common law powers to adjudicate new rights without a jury, the. mere change in form of an action will not authorize theusubmission of common law rights to a court in which no provision is nan tie to secure a trial by jury. A statute .in Michigan provided that any person claiming title to lauds through the Auditor-General’s deed, executed upon a sale thereof for non-payment of taxes, may file a bill in chancery to quiet his title without taking pos - session thereof. It was claimed that the statute gave the right to file the' bill against one in possession of the land, although at the time of the adoption of the Constitution under which the act was passed, trials of titles to lands were at law. It was held that the statute did not have such meaning, but if it did, the Legislature was powerless to enact it. Judge Cooley, speaking for tlie court in Tabor vs. Cook, supra, said: ‘‘The present is one of those cases where a right to a trial by jury existed when the Constitution, was framed, and that right must therefore ‘remain.’ Whatever proceeding the Legislature authorizes for the determination of adverse chums, the rigid of the party in 'possession to a jury trial must be kept in view, and some mode poinLed out by which he can demand it. Lu civil casos at law, including ejectment suits, provision i; made by statute and rule whereby either party may obtain a jury; but there is no such provision for cases in chancery, ancl it is only in special cases, where the court desires the verdict of a jury for its own guidance, that issues in chancery can go before a jury at all. A defendant in chancery, therefore, can not waive a jury by failing to demand it, because no mode is provided by which any such demand-can be made; and a statute which should authorize a bill in the nature of an ejectment bill, without at the same time providing some means by which a jury could be had at the option of the defendant, would be in palpable disregard of the provisions of the Constitution which we-have quoted.” This court said in Flint River Steamboat Co. vs. Roberts, 2 Fla. 102, S. C. 48 Am. Dec. 178, that this guaranty of trial by jury “has always been an object of deep interest and solicitude, and every encroach men, upon it has been watched with great jealousy.” The language of the court in Plimpton vs. Town of Somerset, supra, is that “the Constitution was intended to provide for the future as well as the past, to protect the lights of the people by every safeguard which their wisdom and experience then approved, whether those rights them existed by rules of the common .law, or might from time to time arise out of subsequent legislation. All the rights, whether then or thereafter arising, which would properly fall into those, classes of rights to' which by the course of the common law the trial by jury was secured, were intended to be embraced within this article. Hence it is not the time when the violated right first had its existence, nor whether the statute which gives rise to it was adopted before or after the Constitution that we are to regard as the criterion of the extent of this -provision of the Constitution, but it is the nature of the controversy between the parties, and its fitness to be-tried by a jury according to the rules of the common law, that must decide the question.” This opinion also very properly states that the “Constitution should be construed in the spirit with which it was enacted, and that any restriction of its present application should come, not through legislation and judicial construction, but from the direct, constitutional and considerate action of the people.”

- By looking into the jurisdiction of the court of chancery we find that originally it did not entertain jurisdiction to enjoin a mere trespass upon land, but in analogy to the remedy of injunction to prevent waste dependent upon privity of title between the parties, courts of equity extended the remedy to cases of trespass without privity of title under certain conditions. This extension of the remedy of injunction took place prior to the formation of our first Constitution in 1839. The basis of the jurisdiction in such cases was the probability of irreparable injury, the inadequacy of a pecuniary compensation, the destruction of the estate in the character in which it had been enjoyed, or the prevention of a multiplicity of suits where the right to the property was controverted by numerous persons, each insisting on his individual "right. The courts are practically unanimous in announcing the rule that something more than a mere trespass, susceptible of adequate remuneration, must be shown before a court of equity will exercise jurisdiction. Carney vs. Hadley, 32 Fla. 344, 14 South. Rep. 4; Indian River Steamboat Co. vs. East Coast Transportation Company, 28 Fla. 387, 10 South. Rep. 480; Burns vs. Sanderson, 13 Fla. 381; Jerome vs. Ross, 7 Johnson’s Ch. 315, S. C. 11 Am. Dec. 484; McMillan vs. Ferrell, 7 W. Va. 223; Gause vs. Perkins, 3 Jones Eq. 177, S. C. 69 Am. Dec. 728; Powell vs. Cheshire, 70 Ga. 357, S. C. 48 Am. ; 2 Beach on Injunctions, sec. 1125 et seq.; Kerr on Injunctions, p. 112 et seq. What will constitute irreparable injury, when a pecuniary recovery at law will be inadequate, or what will amount to a destruction of the estate in the character in which it has been held, has given rise to diversity of opinion. In England, after the court of chancery commenced to grant injunctions in cases of trespass, the remedy was eventually pressed to the extent of restraining the cutting of timber trees, on the ground that it was destruction and took away the substance of the land, but without some element of irreparable injury in addition to the mere destruction of the timber the court did not exercise such jurisdiction up to the time of the foundation of our first Constitution in 1838, and in the •early settlement of this country when forest timber •was abundant, the court of chancery would not enjoin and dispose of the entire case unless irreparable injury, such as a verdict at law could not adequately atone for, was alleged and shown. It must be conceded that lately the jurisdiction of the court has been extended in some cases to the prevention of injury or the destruction of the ordinary growth on timbered lands upon the theory that it is destruction of the estate, but an examination of the cases shows, in our opinion, that up to the time when the right of trial by jury in common law cases was secured here by constitutional provision, an injunction would not be granted in chancery to restrain the cutting of ordinary growth on timbered lands unless the injury was irreparable, so that full and adequate relief could not be granted at law, or where the trespass went to the destruction of the property as it had been enjoyed or where it was necessary to prevent a multiplicity of- suits. In addition to the cases already cited, the following bear upon the jurisdiction of the court of chancery to enjoin the cutting of timber: Green vs. Keen, 4 Md. 98; Shipley vs. Ritter, 7 Md. 408, S. C. 61 Am. Dec. 371; Powell vs. Rawlings, 38 Md. 239; Thompson vs. Williams, 1 Jones Eq. 176; CowJes vs. Shaw, 2 Iowa, 496; Stevens vs. Beekman, 1 Johnson’s Ch. 318; Thatcher vs. Humble, 67 Ind. 444; Hillman vs. Hurley, 82 Ky. 626.

It was a fundamental doctrine of a court of equity, as stated by Pomeroy (vol. 1, sec. 181, Equity Jurisprudence) that when the court “has jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed to a final determination of all the matters at issue. For this reason, if the controversy contains any equitable feature, or requires any purely equitable relief which would belong to the exclusive jurisdiction, or involve any matter pertaining to the concurrent jurisdiction by means of which a court of equity would acquire, as it were, a partial cognizance of it, the' court may go on to.a complete adjudication, and may thus establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its • authority.” The decision of this court in the case of Griffin vs. Fries, 23 Fla. 173, 2 South. Rep. 266, was based upon this principle. The same principle is announced in Montgomery & F. Ry. Co. vs. McKinzie, 85 Ala. 546, 5 South. Rep. 322. It may be safely stated that in all those cases in which, a court- of equity, prior to the adoption of the Constitution guaranteeing a trial by jury, and by virtue of its general or concurrent jurisdiction foronepurpo.se, had proceeded to a complete adjudication of the entire case, even to the settlement of legal rights which otherwise would be beyond its powers, it can not be successfully claimed that the guaranty of trial by jury exists' as to the legal right. But while this is true, we are not prepared to recognize the power in the Legislature to confer equity jurisdiction to grant injunction in matters in respect to which such jurisdiction did not exist before the adoption of the Constitution, and draw to it a legal cause of action cognizable exclusively in a law court and triable by jury, and have both tried by a court without a jury. Should such a power be conceded in the Legislature, it is not perceived where the limit of the power to abolish jury trials in cases existing according to the course of the common law would be placed. Scott vs. Neely, 140 U. S. 106, 11 Sup. Ct. Rep. 712. Before reverting to the statute under which the bill was filed in the present case, further reference to the practice of chancery in granting injunctions to restrain trespasses is necessary. The complainant was-required to have title and, as a general rule, be in possession before he could ask the aid of the court, and if his title was brought in question by the defendant, the court ordinarily would not enjoin, or if an injunction had been granted, would not make it perpetual until the title had been established at law. A mere denial of complainant’s title was not sufficient, and to entitle the defendant to a trial at law his title must be based upon facts showing a substantial dispute of complainant’s title. 2 Beach on Injunctions, secs. 1139, 1140.. It was also early established that the court would interfere by injunction to prevent a trespass in some-cases where the title was in dispute, but this was in aid of a suit at law, and the court interfered not for the purpose of trying the legal title, but to preserve the property pending the suit over the title at law. West vs. Walker, 3 N. J. Eq. 279, note A; Shubrick vs. Guerard, 2 Desaus. Eq. 616; Wadsworth vs. Goree, 96 Ala. 227, 10 South. Rep. 848; Bacon vs. Jones, 4 Mylne & Craig, 433.

It is evident, we think, that the statute has extended the powers of the court of chancery, in the cases provided for, beyond the limit of its jurisdiction as exercised when the right of trial by jury was secured in this State by constitutional provision. Claimants of timbered lands are given by the statute not only the right of an injunction for the trespasses mentioned, but also to have an account taken of the damages resulting therefrom, and this without reference to the character of the injury as being irreparable, the solvency of the trespasser, or the adequacy of the legal remedy for the wrong. The bill, it is apparent, does not allege a case sufficient for the interposition of a court of chancery to enjoin and assess damages independent of the statute, and while it may be conceded that in reference to the entire subject-matter of recognized equitable jurisdiction the Legislature may modify or expand the powers of the court as to such matters, this can not be done to the extent of depriving a party of a right guaranteed to him by the Constitution. Ho doubt can exist that the recovery of damages for a mere trespass was by legal remedy according to the course of the common law in which a jury was employed. The action of trespass was a well recognized legal remedy, and at the time of the adoption of our first Constitution the court of chancery did not enjoin a mere trespass and assess the damages incident thereto, unless some recognized equitable ground for the court’s interference was alleged and shown. The statute authorizes an injunction against certain specified trespasses on timbered lands, and to the extent of conferring the power to prevent, under the conditions prescribed, the unauthorized entry upon such lands and -committing the acts mentioned, we see no good reason why it may not be done; but to the extent of authorizing a court of equity to assess damages for a trespass under the conditions prescribed by the statute, is un-' authorized. It deprives a party of the right of trial by jury in a case according to the course of the common law when the Constitution was adopted. Of course where the court of chancery, in the exercise of either its general or concurrent .jurisdiction, assumes the right to enjoin a trespass, it may, in order to do complete justice in the case, assess the damages resulting therefrom. But it is not competent, in our judgment, for the Legislature to confer the power to enjoin in cases where it did not exist before, and at the same time draw to it the incidental power to assess damages in a case clearly triable at law by a jury.

Our conclusion is, that the order of June 13th, directing the master to assess, was erroneous. We do not discover any error in the order of July 1st, 1891, the only other order from which an appeal was taken. In the order of June 13th the court, in directing an account of the damages to be taken, restrained appellants from further trespassing upon, the premises of appellee, and the order of July 1st was made on motion to confirm the master’s report of the damages. As has been stated, the testimony placed appellants in the attitude of trespassers without color of title, and on such showing the court was authorized to arrest any further trespassing ui.)on the premises in question. This order will be affirmed. The order of June 13th, 1891, directing an account of the damages to be taken, will ' be reversed, and it is so ordered.