been devised to redress such wrongs, and, so long as this remedy is adequate, equity has no right to interfere.

2. The practice of granting injunctions in cases of trespass, it seems, is more liberal now than it was formerly, but a clear case of the inadequacy of the legal remedy must still be shown, in order to justify the interference of the court of chancery.

christ and Carmichael, have from time to time, during two years prior to filing the bill, trespassed upon the said land for the purpose of boxing the trees, and thereby producing turpentine, which they have removed from said trees and from said land; that not only does the removal of the tur

4. In cases of repeated trespasses, where it becomes necessary to quiet a rightful, admitted, or established possession, chancery has often interposed, to prevent a multiplicity of suits, although there may be a remedy at law. This court will not, however, grant an injunction against one person merely because he is guilty of repeated trespasses, where the legal remedy affords an adequate and complete redress in damages. The rule seemingly well sustained by authority is that, before a court of chancery will interfere to prevent a multiplicity of suits, there must be several persons controverting the same right, and each standing upon his own pretension of right.

5. Whenever the complainant's title is disputed, in cases of trespass, a court of equity will not interfere by injunction, on the ground of a multiplicity of suits, until he has successfully established his title by trial at law.

6. Where the alleged trespass or threatened injury is to trees standing on land, in order to justify the granting of an injunction by a court of equity, it must appear that the trees are of such peculiar value and importance to the estate as that the alleged injury to them will so affect the uses and purposes for which the estate was designed as to make the injury to them an irreparable loss to the owner. An allegation that the trees are valueless except for turpentine and timber, and, without them in a condition to produce turpentine and timber, the land would be of little value, and that the acts of defendants, in extracting turpentine from the trees, greatly lessens their value as timber producing trees, does not show that the injury complained of amounts to a destruction of the estate, or that the injury done could not be adequately compensated in damages. This was the rule prior to the enactment of section 1469, Rev. St.

(Syllabus by the Court.)

Appeal from circuit court, Escambia county; James F. McClellan, Judge.

Bill by Jesse Hadley and others against William M. Carney and others for an in junction. Complainants had decree, and defendants appeal. Reversed.

The other facts fully appear in the following statement by MABRY, J.:

This is a bill for an injunction filed by appellees against appellants. The bill alleged that complainants were the owners in fee of a certain tract of land situated in Escambia county, Fla., consisting of 640 acres, described by metes and bounds, and known as the "Benjamin Hadley" or "Richland Pond" tract, and that they and Benjamin Hadley, under whom they claim title as heirs, had been in possession of this land, with interruptions, for more than 60 years, and were then in possession; that said land was very thickly studded with pitch pine trees, of large size and of great value, and that defendant Carney and his foremen, Gil

complainants of the said turpentine, and the value thereof, but its extraction from said trees greatly lessens the value of the same as timber producing trees, and, except for the purpose of the production of turpentine and timber, said trees are valueless; that said trees constitute, in large part, the value of said land, and without them, in a condition to be made valuable for turpentine and timber, the said land is of little value; that the trespasses of respondents are continuous and frequent, and they threaten not only to trespass in the future upon said land, for the purpose of removing turpentine already collected in boxes on the trees, but, from time to time, to trespass for the pur pose of boxing and rescraping said trees; and that said respondents reside in the state of Alabama, and are possessed of no property of any kind in the state of Florida, and, unless they are restrained from their said repeated and innumerable trespasses, complainants are remediless, save by repeated, vexatious, and multiplied suits against respondents, which would be fruitless, in the state of Florida, because of their alleged want of property in this state. The bill prays, among other things, for an order re straining appellants from trespassing upon the said land for the purpose of boxing or scraping or otherwise injuring the trees up. on said land, and from removing the turpentine already in the boxes on the same.

The injunction, as prayed for, was granted, and respondents answered the bill. The an swer denies the allegation that complainants were the owners of the said tract of land, or any part of it, or that they, or any of them, were then in possession of the same, or have at any time been in possession, except for a few days during the month of March, 1888, when they or their agents went upon a portion of said land, but were notified that they were trespassers by Carney, one of the respondents, or his agent, and they shortly thereafter left said premise, and have not since made any effort to take possession of same; that said land was deeded December 18, 1820, by Benjamin Hadley, the ancestor through whom complainants claim title, for valuable consideration, to one William Denman, and the same has never been reconveyed to said Hadley or his heirs; that said land belongs to and is the property of William M. Carney, one of the respondents; and that he is in possession of same as owner, and adversely to all others, and has been so in posses sion since the 31st day of August, 1882, when the same was deeded to him by John D.

Reilly for valuable consideration, and said deed was duly recorded on the 16th day of February, 1883. Further, that, when said Reilly executed said deed, he was in actual possession of said land, as owner thereof, under a deed conveying same to him by James J. Milstead, bearing date March 27, 1852, and that he (Reilly) had been in possession of the said land since the date of said deed; that said Milstead, at the time of making said deed to Reilly, was in pos session of said land under chain of title from said William Denman, to whom Benjamin Hadley had conveyed.

The allegation that respondents were with out property in the state of Florida is denied, and it is averred that Carney-one of them-owns about 6,000 acres of land in Escambia county, Fla., and, further, that a suit for damages alleged to have been sustained by complainants by reason of the alleged trespasses on the part of respondents was then pending between said parties in Escambia county, Ala. It is also alleged that the matters contained in complainants' bill are determinable at law, and do not constitute any ground for relief in a court of equity; and pray the same advantage by their answer as if they had demurred to said bill.

Respondents moved to dissolve the injunction because the material allegations of the bill had been denied, and at a subsequent date moved to dissolve the injunction and dismiss the bill for want of jurisdiction in the court, appearing upon the face of the record. The motions to dissolve were refused, and the case proceeded regularly to final hearing, when, upon the pleadings and proofs, a final decree was rendered, adjudg ing complainants to be the owners of the land in question, and that the respondents, and their agents and attorneys, be perpetually enjoined from going upon said land to box or scrape the pine trees thereon, or to remove any turpentine therefrom, and from committing any acts of trespass on the land. Respondents appealed.

Mallory & Maxwell, for appellants.

MABRY, J., (after stating the facts.) According to the allegations of the bill before us, the acts, against the doing of which an injunction was sought and obtained, amounted to a trespass upon real estate. This trespass, according to the bill, consisted in entering upon land of complainants, boxing the pine trees standing thereon, for the production of turpentine, and the removal of the turpentine from the trees and the land. The case arose and was determined in the circuit court before the enactment of chapter 3884, Laws 1889, and must be disposed of independently of the provisions of that act.

Courts of equity do not ordinarily extend the harsh remedy of injunction to cases of

trespass, but leave the redress of such grievances to the courts of law, where, originally, jurisdiction in such matters was lodged. It is said that, originally, courts of equity did not grant injunctions to restrain trespasses in any case, but, whether in analogy to the remedy to prevent waste, or to prevent injuries supposed not to be adequately recompensed by damages in the legal form, it is now firmly settled that injunctions will be granted to restrain trespasses under certain conditions. The inadequacy of the legal remedy is the foundation and indispensable prerequisite for the interposition of chancery in such matters, for the obvious reason that a legal remedy has been devised to redress such wrongs, and, so long as the law provides an adequate remedy, equity has no right to interfere. The general rule, as has often been stated, is that, in order to give the court of equity jurisdiction to enjoin torts to property, two conditions must concur: First, the complainant's title must be admitted, or be established by a legal adjudication; and, second, the threatened injury must be of such a nature as will cause irreparable damage, not susceptible of complete pecuniary compensation. The courts have generally accepted the statement of the rule here given as correct, although they have encountered considerable difficulty in its application to the facts of the various cases that have arisen out of the complication of human transactions. Jerome v. Ross, 7 Johns. Ch. 315; Gause v. Perkins, 3 Jones, Eq. 177; McMillan v. Ferrell, 7 W. Va. 223; Citizens' Coach Co. v. Camden Horse R. Co., 29 N. J. Eq. 299; Echelkamp v. Schrader, 45 Mo. 505; Hamilton v. Ely, 4 Gill, 34; Catching v. Terrell, 10 Ga. 576; Mayor, etc., v. Groshon, 30 Md. 436; Indian River Steamboat Co. v. East Coast Transp. Co., 28 Fla. 387, 10 South. Rep. 480. To authorize the issuance of the writ of injunction by a court of chancery, the injury threatened must be of such a peculiar nature that compensation in money cannot atone for it. The view expressed by Chancellor Kent is that "it must be a strong and peculiar case of trespass, going to the destruction of the inheritance, or where the mischief is remediless, to entitle the party to the interference of this court by injunction." Jerome v. Ross, supra. In one case of cutting timber, where the petition alleged that the defendants were continuing the trespass with a view to carrying away the timber, and that they intended, if not restrained, to take and carry away the timber (converted into cord wood) from the premises, and so dispose of it as to put it beyond the reach of petitioners, the court, in holding this not to be sufficient, said: "We do not say that there may not be cases where the legal remedy would be incomplete, and in which an injunction might properly issue. For instance, as above suggested, the defendants might be entirely insolvent; the trespass might grow into a nuisance or

waste; nuinberless suits might have to be brought, in order to make the remedy complete; the trespass might be by a party occupying a fiduciary relation, or the injury of such a character that the loss would be irreparable, and not be compensated in dollars and cents; and in any such, or similar, cases, an injunction might be proper." Cowles v. Shaw, 2 Iowa, 496. It is apparent that quite a field for the exercise of chancery powers is here opened up, and many cases show that this court has extended its jurisdiction in the directions indicated. It is said that a more liberal practice prevails now, in granting injunctions, than obtained formerly. But the rule seems to have been adhered to, however, in the cases, that a clear case of the inadequacy of the legal remedy must be shown, in order to justify the interposition of the court of chancery by the harsh remedy of injunction.

The trespasses alleged in the bill under consideration consist in entering the land of complainants, and boxing trees for the production of turpentine; these trespasses are alleged to be continuous and frequent; and that the defendants reside in the state of Alabama, and have no property in this state; also, unless the said defendants be restrained from their repeated and innumerable trespasses, complainants would be remediless, save by repeated, vexatious, and multiplied suits, which would be fruitless in this state, because of the alleged want of property in this jurisdiction by the respondents. The answer positively denies the allegation in the bill that respondents were not possessed of any property in this state, and it is alleged that Carney, who is the only person assert ing any claim to the land, owns at least 6,000 acres in Escambia county, Fla. It seems that a suit for damages in reference to the subject-matter of this proceeding, and between the same parties, is pending in Escambia county, Ala. No effort was made on the part of appellees to establish the allegation that appellants were not possessed of any property in Florida, but the showing made by the latter is clear, that Carney, at the time of filing the bill, was possessed of considerable real property situated in Escambia county, Fla., amounting to at least 6,000 acres. Insolvency is an element in determining whether or not the court should act in granting an injunction in a case. In Gause v. Perkins, supra, it is said that the "injury must be of a peculiar nature, so that compensation in money cannot atone for it. Where, from its nature, it may be thus atoned for, if, in the particular case, the party be insolvent, and on that account unable to atone for it, it will be considered irreparable." And, in many of the cases where injunctions have been granted to restrain trespasses, the insolvency of the trespasser has been an important element. Our court has said that insolvency, alone, of the defendant, will not be sufficient to authorize

an injunction. Railroad Co. v. Spratt, 12 Fla. 26. Under the proof in the record before us, insolvency cannot be claimed in support of the decree. The showing is that one of the respondents, and who is the real party in interest in the subject-matter of this suit, owns considerable property within the jurisdiction of the court, and liable to any judgment for damages that may be recovered against him.

In cases of repeated trespasses, where it is necessary to quiet a rightful, admitted, or established possession, chancery has often interposed, to prevent a multiplicity of suits, although there may be a remedy at law, and this is a well-recognized head of chancery jurisdiction, when a proper case is presented. The court will not, however, grant an injunction against one person merely because he is guilty of repeated trespasses, where the legal remedy affords an adequate and complete redress in damages. The rule, as stated by many decisions, is that to justify the interference of a court of equity in cases of trespass, in order to avoid a multiplicity of suits, there must be several persons controverting the same right, and each standing upon his own claim or pretension. Jerome v. Ross, supra; Hatcher v. Hampton, 7 Ga. 49; Nicodemus v. Nicodemus, 41 Md. 529; Thorn v. Sweeney, 12 Nev. 251; Roebling v. Bank, 30 Fed. Rep. 744; High, Inj. § 700.

The bill is filed against Carney and two others, alleged to be his foremen. Carney is the only person who is making any claim to the land, as against appellees, and is the sole moving agency in the alleged invasion of their rights. The other persons named are simply agents and servants, and they do not assert any claim to the land. What they do is for Carney, and in his name, and the controversy in reference to the land is solely between appellees and appellant Carney. According to the rule just stated, there would be no occasion for the interference of chancery on account of the multiplicity of suits between the parties. But, in addition to the rule mentioned, it seems to be' clearly settled that, whenever the complainant's title is disputed, a court of equity will not interfere by injunction, or make perpetual an injunction already granted, on the ground of a multiplicity of suits, until he has procured his title to be established by a suc cessful trial at law. The ground upon which this action is based is because, as a general thing, courts of equity do not try disputed legal titles to land. 1 Pom. Eq. Jur. § 252; Poyer v. Village of Des Plaines, 123 Ill. 111, 13 N. E. Rep. 819; Carlisle v. Cooper, 21 N. J. Eq. 576; Irwin v. Davidson, 3 Ired. Eq. 311; Caro v. City Co., 19 Fla. 766. The answer shows that the title of appellees was disputed, and an examination of the testimony in the record does not dispel the presence of a serious issue between the parties as to the legal title to the land in

question. In any view we take of the case, there is nothing to help the final decree in favor of appellees, on the ground of the right of the court to interfere on account of a multiplicity of suits.

But can the decree in favor of appellees, making the injunction perpetual, be supported on the ground that appellants were committing an irreparable injury, within the meaning of the rule already stated? It is safe to say that even in cases of the destruction of timber, by cutting and removing it from the land, it is not sufficient, in order to obtain an injunction, to simply allege that such cutting and removal amount to irrepar able injury to the land, and a great damage and loss to the owner. In addition, it must appear that the trees are of such peculiar value and importance to the estate as that their destruction or injury will so affect the uses and purposes for which it is designed as to make their loss an irreparable injury to the owner. If adequate compensation can be made in money, the remedy is at law. In Green v. Keen, 4 Md. 98, the allegation as to the trespass was, in substance, that the defendant had entered upon the premises mentioned, and had felled timber trees and other trees standing upon the land, and committed other and further waste thereon, by driving wagons and other vehi cles over the same, and had threatened to fell other timber trees on the land, to its irreparable injury, and to the great damage and loss of complainant. This was held not sufficient to authorize an injunction.

It was alleged in Shipley v. Ritter, 7 Md. 408, that complainant's home, consisting of 240 acres, had on a part of it timber consisting of oak, chestnut, hickory, and other growth common to the country, and that it was "particularly valuable and desirable to complainant as timber land, so much so that it would be and is attended with irreparable injury for the same to be cut down and destroyed, or converted into pasture or waste land; that a portion of said timber land, and the portion which is, in part, the subject of the waste and destruction hereinafter complained of, is so situated in reference to complainant's house and outbuildings that it affords them protection and shelter from the severity of the seasons of summer and winter, besides being ornamental, and that on these accounts, also, the waste and destruction hereinafter set forth and complained of is attended with, and is, an irreparable injury to complainant." The trespass of entering upon and destroying the timber by defendants was also alleged. The same court held this bill to be sufficient for an injunction. The principle applied here is this: The trespass complained of went to the destruction of that which was essential to the value of the estate, and to the destruction of the estate itself, in the character in which it had been enjoyed. When such an injury is

inflicted, it is irreparable, in the meaning of the rule, and cannot be compensated by the legal remedy; and hence a court of chancery, ever ready to prevent an injustice, steps forward with its restraining power to prevent the threatened injury. The character of the injury, as being capable of compensation, or such as is irreparable in its nature, is the distinguishing feature, in determining the jurisdiction of chancery in such cases. West v. Walker, 3 N. J. Eq. 279; Thompson v. Williams, 1 Jones, Eq. 176; Powell v. Rawlings, 38 Md. 239; Thatcher v. Humble, 67 Ind. 444; Hatcher v. Hampton, supra; Thomas v. James, 32 Ala. 723; Hillman v. Hurley, 82 Ky. 626.

The averments of the bill in Gause v. Perkins, to which reference has already been made, were that most of the land was fit for little else than the production of turpentine, staves, and timber, and that defendant had entered upon the land, by his agents and servants, and boxed some 25,000 trees, for producing turpentine, and had carried on the business of making turpentine on this land, and carrying it off, and selling the same, in large quantities. Further, that he was overworking the trees, and in a few years they would be worn out, useless, and unfit for making turpentine, and defendant was, at the time of filing the bill, engaged in committing other wastes, spoil, and destruction upon the land, and was thus doing an irreparable injury to the land, and would reader the same utterly useless and valueless, unless he was restrained by injunction. The court decided in this case that the boxing of pine trees for turpentine, and working them for such purpose, was not destruction, and that the court could not see that the injury would be irreparable, unless it was shown that the defendant was insolvent, and on that account unable to atone for any injury that he might do the complainant. In another case, (Bell v. Chadwick, 71 N. C. 329,) where an injunction against working pine trees for turpentine was sought, the court said: "It should be a very clear case of trespass, and irreparable mischief, to justify a court in crippling the industry of the country, and preventing the full development of our resources." As was said in a still later case, (McCormick v. Nixon, 83 N. C. 113,) the decisions in that state were placed upon the ground of justice to the party sought to be enjoined, and in obedience to public policy, which favors the use to which lands are adapted as means of developing the resources of the country.

We have been unable to find any case holding that the simple working of pine trees for turpentine, in the customary manner, was irreparable injury, to prevent which a court of equity would grant an injunction. In Stevens v. Beekman, 1 Johns. Ch. 317, the allegation, in effect, was that defendant had entered the premises, cut down and taken away timber, and that the part of the

land on which such waste was committed was principally, if not exclusively, valuable on account of the timber. This was held insufficient to sustain the injunction. So far as the loss of the turpentine is concerned, or damage to the trees in the production of turpentine, the bill entirely fails to exhibit a case of irreparable injury. It is made to appear that the trees are valueless except for turpentine and timber, and without them, in a condition to produce turpentine and timber, the land would be of little value; also, that appellees were being deprived of the turpentine by reason of the acts of appellants. It does not appear from this that the working of the trees for turpentine will be a destruction of them, nor does it appear that the alleged injury is of such a nature as that it cannot be fully compensated in damages. There is an allegation, in connection with the above, that the extraction of the turpentine from the trees greatly lessens their value as timber producing trees; but here, again, there is an absence of any clear showing that the injury resulting from this source amounts to a destruction of the estate, or is such as cannot be fully atoned for in money, and that a recovery for the damage done to the trees, as timber, in working them for turpentine, would not be full and adequate for all the injury sustained. There is no special allegation of damage, showing that pecuniary compensation will not compensate for all the loss.

The court, we think, was in error in not dissolving the injunction on final hearing, without reference to the question of appellees' title. The answer denied the title and possession of appellees, and, on the proof, it is contended by appellants that the court should have refused relief on the ground of want of title in appellees. What we have said disposes of the case, and we need not discuss the question of title.

The decree of the court should be reversed, and it is so ordered.

HAM et al. v. COMMON COUNCIL OF DADEVILLE.

(Supreme Court of Alabama. Nov. 16, 1893.) EQUITY-DECREE-REVIEW-TOWN STREETS-DED

ICATION - INCORPORATION AFTER DEDICATION RIGHTS OF MUNICIPALITY.

1. Where the references in a bill in equity, in the note of submission, and in the evidence of witnesses, to material facts, which do not appear in the record, show that there is not enough of legal evidence in the record to sustain the averments of the bill, and to justify the decree granting relief, such decree will be reversed.

2. Where a person owns land in fee, or the common source of title from whom all parties interested claim, and has it surveyed into lots, blocks, and streets, and a map of it, which he recognizes as being correct, is made with a view of establishing a town, and he sells lots with reference to the map, designating the parcels sold and the streets according to the map,

there is an irrevocable dedication of the streets to the public, whether the town at that time was incorporated or not.

3. Where a town, after it is surveyed and platted, and its streets are dedicated to the public, becomes incorporated, with full authority to establish and open and maintain the streets, the municipality succeeds to all the rights in trust for the public acquired by such dedication; and as against such municipal right neither nonuser nor the rule of prescription nor the statute of limitations can be invoked.

Appeal from chancery court, Tallapoosa county; S. K. McSpadden, Chancellor.

Bill by the common council of Dadeville against J. H. Ham and others to compel defendants to remove a dwelling house and fence which are alleged to obstruct a street of such town. From a decree for plaintiff, defendants appeal. Reversed and remanded. John A. Terrell, for appellants. Henry A. Garrett, for appellee.

COLEMAN, J. The bill was filed by the common council of Dadeville for the purpose of having a dwelling house and fence removed, which the bill avers obstructed and closed up a street of the town of Dadeville, known as "Eufaula Street." The bill avers "that the plan of said town was originally laid off about the 28th of April, 1836, and that said plan or diagram, as thus laid out, showed the different lots, blocks, and streets, and was deposited in the probate office at Dadeville." It further avers "that a great many, if not all, of the lots as originally laid out in the plan by John H. Broadnax, on the 28th day of April, 1836, were sold off to different parties by lots and blocks as designated in the survey." It also avers that Eufaula street was one of the original streets as shown by the survey, and that certain lots and blocks adjacent to Eufaula street were sold and purchased as designated on said map and survey. The general averments of the bill give it equity, and are sufficient in all matters sought to be reached by the several grounds of demurrer assigned against it. The bill does not aver when the town of Dadeville was incorporated; neither does it aver, except by implication, that Eufaula street, where obstructed, is within the corporate limits of the town. An act of incorporation may not be necessary to an absolute dedication to the public, but it should appear that the town has authority to file the present bill. The bill is defective, perhaps, in not averring with sufficient clearness that John H. Broadnax owned the land, and had authority to make the dedication; but it was not objected to on this account. The record is imperfect in many respects, and we are satisfied from written arguments of counsel on both sides, and the note of testimony, that there was material evidence before the chancellor which does not appear in the record. Objections to interrogatories also ap pear in the record, but it is impossible to tell which set of interrogatories are referred