94 FEDERAL REPORTER.
Tucker; nor can it readily be believed that Mr. Tucker would have given these)nstructionl;> unlel;ls he had understood himself to be authorizedto.do so, aI", otherwise he would have been deliberately lending himselif to a deceptio:u calculated to jeopardize the rights of the complainant. The lapse of time l!lince the OCcurrences afford a charitable explanation of Mr. Tucker's present testimony, as well as that of Miss Waldo, and sugges,ts that they have forgotten the facts rather than intentionally misstated them. The relations between Mr. Tucker and the Qefendants render it extremely impropable that they were not informepof, the commencement of the action, or that Mr. 'Lucker's intervention in their behalf was without their sanction. The case is one where conduct is of far more probative force than asseverations or denials by witnesses. . A decree is ordered for the complainant, with costs.
amQmtmt be believed that Mr. have of the action, and the steps in it he did, without the instructions of Mr.
DIMICK et a1. ,v. SHAW.
(Circuit Court of Appeals, EighthOircuit. No. 1,136:
April 17, 1899.)
A cO}1rt of equity has jurisdictlon'of a suit to enjoin a trespasser from working a mine upon, and removing mineral from, land the title to, which has been finally adjudicated in complainatlt's favor.
ApPEAL-REVIEW OF INTERLOCUTORY ORDER
A circuit court of appeals will not disturb an interlocutory order granting an injunction where the questions, of Jaw or facttp,be ultimately determined are difficult, and Injury to (he J}loving party will be immediate, certain, and great if the relief is denied, while the loss of the opposing par1;y"wm be small if it is
!.' ,', "
. ',Appei(f'frofu theOircuH CCjurlof :the United States for the District
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"j" , .',
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ThIs IS a,n ,from aJ:1 interlocutoq' order granting a ,temporary InjunctIoJi 'from in' any lUann.er· :working the property known as the 'and fromaxtractmgor removing ores tMrefrom, or removing' or 'selljng any ores; until,·the, final determination of' the' The bill ;tb.at tl;1e :appellee is the pw.ner of a ,large as the "Baca 9:rant No. Four,", his title thereto, having lately been determined by the supreme court of the United in the cause of ShaW-v. Kellogg, 170 lJ'.S. 312; 18.'Srtp. Ct. 632; 'that defendil.ll'ts, while said 'cliU$ was peI;iding In 'the 'fjupreme' court,went into possession of the landSo in, controversy under verbal appellee's mana,ger for tllepurpos!! of, ,prospecting only, the dete,'mination of the cause then, pending ip,the' supreme, 'that after the fiDal ;\letermillatlon of that cil.use,and the decision of' thecdurt that appellee was'tlle owner of the tract, appellants were 'notified to" quit the premises, butreftised, and since then have commenced mining operations on a large scale f:ile:xicass of the; .permIssion gl11,1llted, ,to ;thell}.tq prospect, aI;ld cone tlnue and trespasSes;, tlIat theya,re insolvent, and, unless enjoined 'by a court of equity, will commit an irreparltble injury to appellee's' propeity. ,Appellants filed an answer setting up, 'a;mong other things; the same defenseiif whIch had been expressly adjUdicated by the supreme court in the case of Shaw 'v. Kellogg, supra, an!! ;also that appellants' 'manager
DIMICK V. SHAW.
had verbally given them perinission to prospect on the lands for minerals, and, in case of a tinal decision in favor of the appellee in that case, to make lIome fair jl;lstal'l'angement with them; that they had discovered a valuable gold vein on the property, and, with the knowledge and consent of apPltllee, had cx,pended la:rge sums of money in deve\oping .the mine which is known as the "Indepen\lent :.\fine," but that now appell,ee' refuses to give them any lease, or make any fair. arrangement with them. A: .general replication was filed, and upon a hearhlg a temporary ij1junction granted.
Charles D. nayt, Thomas Macon, .and .J dhn R. Smith, for a.pper lants. , Joel F. Vaile (Edward O. Wolcott and Elroy N. Clark, on the 'brief); for appellee. Before CALDWELL, SANBORN, and THA1.'ER, Oircuit Judges. OALDWELL, Circuit Judge. The answer challenging the ap· pellee's'title, and setting up an adverse superior title, is merely an effort to retry the question settled by the judgment of the supreme court in the case of Shaw v. Kellogg, supra. It requires no citation of authorities to sustain the proposition of appellee's counsel that a person going upon property by permission of a paHywhile a suit in relation to the title of that property is. pending cannot, after that suit has heen determined in of his licensor, litigate the title over again' on the same lines. The only question raised by appellants which it is necessary to notice on this appeal is that appellee has a complete and adequate remedy atlaw, and that by this proceeding appellants are deprived of their constitutional right to atrial by jury. This precise question, on facts identical in legal effect with the facts of this case, has been three times decided by this court. In Preteca v. Land Grant Co., 4 U. S. App. 326, 1 C. C. A. 607, and 50 Fed. 674, this court held that a court of equity had jurisdiction of a cause in which the averments in the bill weresu.bstantiaUy the same as the averments of the bill in this case. In that case we said:
"A court of equity may take cognizance of a controversy to prevent a multiplicity of suits, although the ·exercise of such jilrisdiction may call for the adjudication upon purely legal rights, and confer purely legal relief; and so a court has jurisdiction to restrain waste and trespass to land where the facts are of such a nature that the law cannot afford adequate relief. 1 Porn. JUl'. §§ 243, 245, 252. 271, 274, and cases there cited. The bill avers that the complainant's title has been finally adjudicated in its favor by a court of competent jurisdiction in suits brought against persons in like situations with the defendants. The averments of the bill make the case one of equitable cognizance. Against irresponsible parties taking mineral out of the land and removing the same, and cutting and removing timber, actions of ejectment would have been wholly inadequate for the protection of the complainant's rights. It may be true that· the complainant had a remedy at law, but 'It Is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in eqUity.' Boyce v. Grundy, 3 Pet. 215; Oelrichs v. Spain, 15 \Vall. 211, 228."
In Ooal Co. v. MeCaleb, 32 U. S. App. 330, 15 C. C. A. 270, and 68 Fed. 86, the court belo>" had refused to grant an injunction against trespassers who had entered upon complainant's lands, and were mining and shipping coal, but this court reversed that decree, and held that equity had jurisdiction, and that complainant was entitled to an
iD,junction. Judge Thayer, who delivered the opinion of the court in that case, said: "It· is now well settled· by many adjudications, beginning with the case ot
Mitchell v. Dors, 6 Yes. 147, that an-injunction may be granted to restrain a trespasser from entering into a mine and removing the minerals therefrom. Trespasses of that· kind, as well as those' which consist in cutting down and removing timber, or in removing bUildings or other improvements of a permanent character standing upon lands,: are readily enjoined, because, as has sometimes been such acts tend tp destroy the estate, and to occasion irreparable loss and damage. Courtliop'e' 'v. Mapplesden, 10 Ves. 290; Scully v. Rose, 61 Md. 408; Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 565; Jerome v. Ross, 7 Johns. Oh. 315; Hammond v. 'Winchester, 82 Ala. 470, 2 'South. 892; Snyder v. Hopkins, 31 Kan. 557, 3 Pac. 367; Iron Co. v. Reymert, 45 N. Y. 703; 2 Beach, Inj. (1895) § 1155; High, Inj. (1st Ed.) § 469."
In Emigratlon Co. v. GaUegos,61 U. S. App. 13, 32 C. C. A. 470, and 89 Fed. 769, this court held that a continuing trespass by a and wroJ;lgful diversion ·of large number of persons, and water through h,.nds, which is continually their value, will give a court of equity jurisdiction, even without showing the of the defendants. In that case Judge Sanborn, speaking for the court, said:
"A continuing trespass upon real estate, or upon an therein, to the serious damage of the complainant, warrants an injunction to restrain it. A suit In equity is generally the only adeqlIate remedy for trespasses continually repeated, because ·constantly -recurring actions for damages would be more vexatious and expensive than effective. .2 Beach, Inj. §§ 1129, 1146; Tallman v. Railroad Co., 121.N. Y. 119, 123, 23 N. E. 1134; Dline v. Railroad Co., 101 N. Y. 98, 122, 4 N. E. 536; Galway v. Railroad Co., 128 N. Y. 132, 145, 28 £\. E. Evans v.Ross (CaL) 8 Pac. 88." .
In addition to what has been said, it is now the settled rule of this court and thE? other circuit court£ of appeal which have had occasion to pass upon subject that on. appeals from interlocutory orders granting an injunction whenever the questions of law or facts to bp ultimately determined in a suit ar,e, grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small if it is granted, and is protected by a good bond, the appellate courts will not disturb the order of the court below. City of Newton v. Levis, 49 U. S. App. 266, 25 C. C. A. 161. and 79 Fed. 715; Allison v. Gorson, 60 U. S. App. 387,32 C. C. A. 12, and 88 Fed. 581; Dooley v. Hadden, 38 U. S. App. 651, 20 C. C. A. 494, and 74 Fed. 429; Jensen v. Norton, 29 U. S. App. 121, 12 C. C. A. 608, and 64 Fed. 662. Other questions have been presented by counsel in their argument, but, as this appeal is merely from an interlocutory order, they should not be determined until the proofs are all in. Upon the showing made by the appellee he was entitled to the injunction, and the order granting it is affirmed.'
HUGULEY MFG. CO. V. GAI,E'fON COTTON MILLS.
HUGULEY MFG. CO. et a1. v. GALETON COTTON MILLS et al. (Circuit Court of Appeals, Fifth Circuit. May 16, 1899.) No. 798.
MORTGAGES-REVERSAL OF DECREE OF FORECLOSURE-RIGHTS OF MORTGAGEE IN POSSESSION AS PURCHASER.
A mortgagee having a valid mortgage which is foreclosed in a court of competent jurisdiction, and who becomes the purchaser under the decree, and is given possession of the property, cannot be treated as ,a trespasser wrongfully in possession on a subsequent reversal of the decree, but is entitled on an accounting to the benefit of the equitable rules governing mortgagees 11.. possession, and to have the rental value of the property during his possession applied on a deficiency reI)laining due him after its resale.
2. SAME-EFFECT OF STATE STATUTE.
The right and obligation of a mortgagee in possession to apply rents and profits upon the mortgage debt is a doctrine of equity, and is not affected by a state statute providing that a mortgage is only security for a debt, and passes nQ title, as mortgages were alwaJ's so regarded by courts of equity;
Appeal from the Circuit Court of the United States for the Northern District of Georgia. W. R. Hammond and John M. Chilton, for appellant. B. F. Abbott and P. H. Brewster, for appellee. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. SHELBY, Circuit, Judge. On January 1, 1884, the Alabama & Georgia Manufacturing Company executed a mortgage or deed, of trust to J. J. Robinson and two others to secure $65,000 of bonds isImed by it that day. Subsequently the property embraced in the mortgage was sold under a decree of a state court subject to the mortgage. Under this sale the Huguley Company became the purchaser and owner of the property, subject to the incumbrance of the mortgage for $65,000. It was placed in possession of the property. A bill was filed in the circuit court of the United States for the district of Georgia to foredose the mortgage, a decree of foreclosure rendered, and on appeal to this court the decree was reversed. 13, U. S. App. 359, 6 C. C. A.79, and 56 FecI. (mo. The decree of foreclosure being vacated by reversal, the circuit eourt granted a petition on the part of the Huguley Ylanufacturing Company to restore it to the pos';; ssion of the property, upon condition, however, that it pay into court $10,000, which had been paid by the purchasers under the now vacated foreclosure sale. This condition the Huguley Ylanufacturing Company did not comply with, but resisted. It took another appeal to this court, and the decree of the circuit court Wail affirmed. 30 U. S. App. 683, 19 C. C. A. 152, and 72 Fed. 70S. At the first foreclosure sale the property was purchased for the bondholders, who organized a corporation under the llame of the Galpton Cotton Mills. This corporation was placed in possessioll of the