FEDER.L REPORTER ,_
RIVER CYPRESS LUMBER
(Oircuit.Oourt, D. -1.
OaroLina. April 80, 1892.)
.The law of the states as to possession of lands under color of title, being a rule of propertJ, aro of controlling authority in the federal courts. lnSouth Carolina, when one enters on a body of land under color of title, the
STATE DEOISIONS-ADVEME POSSESSION .
2.AD;VURSB POSSB$SION-COLOR OF TITLE.
actual possession of a part is the possession of the whole, except such parts as are
in actual possession of others.
INJUNCTION-POSSESSION OF LANDS.
PlaintifY, being in possession of a large tract of timber land under color of title, 'and'engaged ,.,ith numeroUs laborers in getting out logs for his lumber mill, in which a large capital is invested, and which is dependent upon this tract for a supP'1 pf logs, is entitled to a temporary injunction against one Who, under claim of with force and firearms, enters upon the tract, destroys plai.ntifY's logging implements, and spreads terror among his workmen; but as a court of eqUity cannot determine the title to the land the parties will be l'equired to frame an issue of law pntbat question, to be tried to a jury, pending the injunction.
In Equity. Bill by the Santee River Cypress Lumber Company against R. B; James and others for an injunction against with the ,possession of certain lands. Temporary injunction continued· .Smythe & Lee and E. W. Moise, for complainant. M. a.Galluchat and A. G. Magrath, for defendants. SIMONTON, District Judge. The bill was filed for an injunction. The complainant, claiming to be in peaceful possession of a tract of land, alleges that the defendant, with actual force and firearms, entered upon its premises, destroyed its boats; drove away its laborers, terrorized and dOlloralized its labor, caused a temporary suspension of its operations, and threatened complete destruction of them. A temporary injunction 'Was granted to prevent a flagrant breaoh of the peace, which seemed imminent. Leave was reserved to defendants to move to set it aside on 'short notice. Defendan.ts have answered, and admitted the entry, justifying it nnderclaimof ownership. The testimony in the cause has 'been taken. Itappears that the complainant purchased and holds un:der conveyance in fee simple a body of swamp land consisting of several 'adjacent tracts ofland lying along the Santee river, containing in all 'Some 13.000 acres. A plat was made of the land in one body, and it, with. the deed, was duly recorded. The land is valuable only for the timber upon it, and is overflowed every freshet in the river. This land Was purchased for the purposes of a lumber business in which complainant is engaged. It has erected lower down the river a large mill for preparing lumber for market, attached to which is a pond in which logs are kept for use. The operations of this mill are dependent upon the supplyoflumberfrom the 13,000 acres ofland. This is cypress, ina swamp which cannot be traversed by wheeled vehicles. It is traversed by small creeks and water ways. The complainant had dug out these creeks and waterways, and had constructed canals, one leading through the length
SANTEE RIVER CYPRESS LUMBER CO. V. JAMES.
of the tract. The mode of operation is first to kill the trees by girdling them. After they have died, they are cut down, and whenever a freshet occurs and fills the water ways the logs are floated out of the swamp, carried by the river to the mill, and stored in the pond. Thus the mill and tpel:>e forests constitnte the enterprise. Any interruption in felling and floating the timber tends to shut down the mill and stop the enterprise. The capital invested is very large,-claimed to be $300,000. The adventure is an experiment. The complainant, for the purposes of the work, has formed camps in several parts of the large tract, from out to their daily task of girdling and felling which the laborers For this purpose they use small boats, of which they had a considerable number, owned by complainant. . The defendants, denying in their answer all claim of title in complainant, setting up title in themselves, in the evidence lay claim to two tracts, alleged to be pltrt of the entire tract, of 1,000 acres each. As evidence of title they produce two grants, dated in the last century, to th(l ancestor, ·as they claim, of the defendants Robert B. James, and David W. Brailsford. They never were in actual possession of the land until the day of their entry upon it. Indeed, their evidence goes to show that the land never was in actual occupancy of anyone. The possession which they could claim, then, was only constructive possession, which the law will presume when legal title is established. Code Ch'il Proe; s. C. § 101; },[m3eley v. HankerRon, 25 S. 524. .. The first question is, was the complainant in possession of the entire tract. including, if it does include, these two 1,000-acre tracts? The preponderance of the evidence shows that it was in the exercise of acts of ownership on that part of the tract which one of the grants is claimed to cover, cutting timber and girdling trees, digging the main channel, of which these particular tracts are the key. But, without such acts, complainant was in possession. The law of the state of South Carolina upon this subject, being a rule of property, controls this court. When one enters upon a body of land under color of title the actual possession of a part is the possession of the whole tract, except such parts thereof as are in actual possession of some one else. McColman v. Wilkes, 3 Strob. 470; Gourdin v. Davis, 2 Rich, Law, 481. The complainant entered with its deed and plat, duly recorded, as color of title, showing the full qU8ntityof its claim. It erected camps in various places, removed the soil, cut down trees, and girdled a large number. The possession· was open and notorious. At times there were employed over 300 men at work in the swamp. Noone else was in actual occupancy of any part of the tract. The entry of defendants in the manner charged was not denied. They justify by title. In this court the title to the land eRnnot be determined. The only questions are, was the possession disturbed? Were the circt1mstances such as call for the extrabrdinary remedy of this court? This court cll-nnot interfere unless the injury threatened is of such It character as carinot be compensated in an artioli at law,-is irreparahle. Jerome v. ROBB, 17 Johns. Ch. 315. Webave seen that in the operations of the company the mill and forests were in:-
to keep lJP enterprise, tre.re to the mill, and.lnbisbe suspended or stopP!i4 tb.e enterprise, which largec,apital was embarked, must fail. ,not confined to 11 peaceful entry and claim, The but with'llCtual force, with firellrn1:B., and the destruction c0ll:lpmillant, were calculated' ,to excite alarm among of the the colored p.eqple engage,dby complainant; to terrorize them, to the last degree; to demoralize and, Q,iaperse them; and to deter others from taking their places. This would result in destruction to the whole enterprise.' No damages which,could be recovered in any action of trespass ,The injunction must be continued until the couldcotXlpensate for further order of the court. Erhardt v. Boaro, 113 U. S. 536,5 Sup. Ct. Rep. 56Q; .Irwinv. Didon,9 How. 9. But this will not do exact justice defendants should have an opportunity of between ,these parties. . rightslljS,t!;ley have. Let an issue be made up on the the law: ,ofthis cO\1'rt, and tried before a jury therein. Let issue be .)'pether Robert R James and David W. Brailseither them,. have all:Y title.to the lands claimed by the complainant, qr anY pa,-:t or.paristhereof, and the nature and extent of that title. The tinding, of 1pe Jury to be reported to this court, with the the possession is in the complainant, charge ofthejudge to therp. and as the said pefenda'tHtset.up adverse title, let them be the actors in said issue. See Muldrow, v. Jone8, Rice, Law, 64.
(OircuAt OOUrt, N. D. IUinoia. January 4, 1899.)
L FORBOLOSURlI-EvII;IENCll;""8PllSTITUTION: oJ!: .sECURITIES.
In a suit to fpreclosea tru\Jt deed it appeaz:ed that the defendant had afterwards given theoomplainant $Bother note, with' other security, for the same debt. Defendant that, this other security was taken in. place of. the trust dee4. but defendant contradicted himself, and the clerk sllowed that he WBS undet'defendant's influence. The receipt taken by defendant to show what the seC/ond not',e was security for did not atate that it wall to take the plaCll of the trust deed.. Held, that the preponderaI)ceof the evidence did not show that the secolldnote, with its security, was,taken in substitution of the trust deed.
S. SAME-PLJ:DGE. Where the only proof that a notE!lse<\ured by trullt deed was pledged to segure a liability in no way connected with the origin of the trust deed is the testimony of the per.son.towhom such liability was. incurred, and he is contradicted by the maker of the note, the end,ence fails to show th,at the note was so pledied.
lard, W. G.'
InEquity.,'·..· ..Burry, for . Weigley, Bulkley &: Gray, .0. JI. &my, Flower, Smith &: Musgrave, O. H. Learning, JMden &;- Farson,Oa7fl.pbell &;- Ouster, Juda:h&: WilA. T. Ewing.,. G. ]frank White, Wilbar &;- Clarke, John S.
Gqrdiner, for defendants.