Tazewell Republican. [volume] (Tazewell, Va.) 1892-1919, 1897-04-01

Simonton, Circuit Judge:
This case comes up on appeal from the
Circuit Court of the United States for the
District Of West Virginia.
The appellant in 1894 purchased from
the Trustees of the Elkhorn and Sandy
River Land Company the timber Of certain
kind and character growing on tract OF
land.of about 5000 acres, in Mcdowell
County, West Virginia, described as the
water shed of Browns Greek. The con-
tract of purchase was formally executed
3lst July, 1891. The appellant, however,
under verbal agreement, had already
commenced to cut timber off the land. On
9th July, 1891, Jaeger, one of the appel
lees, verbally and in writing, notified Rlt-
ter, the appellant, that he claimed a part
of the land, the timber from which the
Land Company had undertaken to sell,
and forbade him to cut any timber on it.
Subsequently the appellees brought their
action of eiectment against the trustees OF
the Elkhorn and Sandy River Land Trust,
and a number of other parties, claiming
that they were owners of tract of land OF
$50, 600 acres, granted TO Robert Pollard,
by patent dated Goth March, 1895, and
held by them by virtue Of sundry mesne
conveyances, and that the defendants were
trespassing thereon. After said suit was
instituted bill was filed in the Circuit
Court of United States, for the District of
West Virginia, on 22nd July, 1898, pray
ing an Injunction against the defendants in
the eiectment suit, restraining from cutting
timber on the lands claimed by plaintiffs i'll
said suit, which injunction was granted.
Ritter was not party co nomine in these
suits. An action of ejectment was then
brought against Ritter and large number
of other persons, by the appellees, on 18th
September, 1895, and, on 30th December
following, bill was flied PRAYING similar
injunction against Ritter, and prelimi-
nary Injunction wGs granted, with rule to
show cause why it benOt made permanent.
Ritter applied to the court to dissolve and
annul this injunction, or, if the court re-
fused to dissolve the same absolutely, then
to dissolve the same upon allowing the de-
PENDANT Ritter, to give such bond or Sc.
curity as the court may deem proper for
the protection of such rights and interests
as plaintiffs may have in the subject Of lit
gation, or, if this be refused, then to mod
ify the injunction to such extent as the de-
PENDANT may show himself entitled to.
The court refused to dissolve the injunc-
ton, either absolutely or on terms, or to
modify it in any way.
This is assigned as error, and the case
comes here under this assignment.
The appellant IN the court below based
his application for the dissolution of the
injunction on two grounds: First, that he
had been misled by Mr. Strother, the at
torney- at-law and in fact of one Of the APP
pelants, who had advised him to 90 on
cutting the timber This is denied posi-
lively by Mr.. Strother Such conduct OH
the part of an attorney, who was at that
time actively asserting the rights of his
principle, is, to say the least, improbable.
The judge below solved the matter OH the
denial of Mr., Strother. 1t is to be pre-
sumed that he knew the persons. We will
not disturb his conclusion.
Second, Ritter; in his motion, relied
upon the delay of the compliments in APP
plying for an injunction for SO long time
whilst they knew, or had the means of
knowing, that he was cutting timber, and
he contends that this shows acquiescence
on their part in his acts.
In order to constitute the estoppel, or
quasi estoppel, by acquiescence, the party
with full knowledge or notice of his rights,
must freely do what amounts to recogni-
tion of the transaction. or must act in a
manner inconsistent with its reputation,
or must lie by for q considerable time, and
knowingly permit the other party to deal
with the subject matter under the belief
that the transaction has been recognized,
or must abstain for considerable time
from Impeachment so that the other party
may reasonably suppose that it is recog-
nized. Pomeroy Eq. Jur., Section 965.
Simmons VS.. Burlington &c. Ry Co., 1919
U. s., at page 29l.
But it appears in the record that at the
very beginning of his enterprise, even be-
fore the date of his contract with his ven
doris, Ritter had prompt and decided mott
fication from compliments not to 90 on
these lands and not to cut the timber,
which notification was repeated to him in
person, followed up by suit in ejectment
and by bill for injunction against his ven
doris and against himself There was no
standing by and permitting him to invest
capital, settle plant and spend money,
without objection or protest. There was
prompt notice and objection, and, what
ever he did after that was at his own peril.
The complainants had right to expect
that their notice and remonstrance would
bring fruit, and when they discovered that
Notwithstanding these, he persisted in the
acts they deemed unlawful, they invoked
the assistance of the law court and the pre-
ventve process of the Court of Equity long
before, under the Statute of Limitation,
their right would be barred. They can
not be charged with acquescence.
But is it contended that the court erred
in not dissolving the injunction on terms,
and in not permitting the appellant to give
bond for the timber he should cut pendente
lite?
The granting or the refusal of an iniunc
ton rests in tie sound discretion of the
court. Poor VS.. Carleton, Federal Cases
No. II, 272. 1t is a power requiring great
caution, deliberation and sound discretion,
and involves responsibility. The right set
up must be clear, the injury must be i'm
pending and so threatened that it can be
averted only by the preventive process of
the court.
The judge who granted this injunction
has had great and unusual experience. He
was possessed of all the facts of the case,
and OF the peculiar circumstances surround
ing it. His exercise of his discretion, no
doubt, was the result of calm deiberation.
1t could only be set aside for manifest err
ror in the conclusion he reached. He con-
Guided, as matter Of fact, with all the at.
fidavits filed in the case before him, that
the lands in dispute here were chiefly val
liable for the timber upon it, That cut
ting the timber would naturally destroy its
chief value. That not only was the tim
Der in itself specially valuable, but that it
was necessary to utilize and develop what
ever coal there was in the land. Under
this conviction, he determined to preserve
the status quo. We are not prepared to
say that he erred.
The decree of the Circuit Court is at
frmed.