Unknown County MsArchives Court.....Poindexter, Mr 1834
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

POINDEXTER vs. HENDERS0N, ET AL.

Pages 176-179

Where the complainant filed a bill to stay waste, threatened to be committed 
on lands by one in possession under an adverse claim, a demurrer to the bill 
will be sustained and the injunction dissolved.

The result might be otherwise, in the case of a lawless trespasser, without 
colour of title.

Unless under very special circumstances, on injunction will not be granted to 
stay waste, except in cases where irreparable injury will be sustained. 

An injunction to stay waste will not be granted, where there is adequate 
remedy at law.


OPINION OF THE COURT—By THE HON. POWHATTAN ELLIS.

APPEAL FROM THE SUPERIOR COURT OF CHANCERY FOR THE WESTERN DISTRICT.

The complainant sets forth in his bill:—That on the 3d day of July, in the 
year of our Lord one thousand eight hundred and twenty-one, a public sale of 
the land of the United States was held in the town of Washington, in obedience 
to the proclamation of the President of the United States, at which sale 
Elijah Smith became the purchaser of sundry tracts or parcels of land, 
amounting in the whole to about the quantity of seven hundred and sixty-five 
acres. That said Smith made full payment for the land so purchased, and 
obtained from the Register of the land office, west of Pearl River, final 
certificates according to the laws of the United States. That afterwards, on 
the 12th of September 1821, complainant became the purchaser of the above 
named land from said Smith, for the sum of ten thousand dollars, and received 
a deed of conveyance. It is further stated, that complainant expected to 
obtain peaceable possession of the premises aforesaid; but contrary to this 
expectation, one Stephen Henderson, of the State of Louisiana, has placed 
thereon one Edmund Guice, under pretence of having claim to said land, and of 
having sold the same to one George Salted, and utterly refused to give 
possession, notwithstanding the sale aforesaid. It is further stated, that 
Henderson has instructed Guice, to resist by force the surveyor of the public 
lands, in surveying the tract purchased as aforesaid, and threatens to commit 
waste thereon, by cutting down the timber, and removing or destroying the 
improvements on the premises, although the said defendants well know the said 
lands to belong lawfully and of right to the complainant. The bill concludes 
with a prayer "for an injunction to stay waste." To which bill the defendants 
filed a general demurrer, upon which issue was taken. At a superior court of 
chancery for the Western District, held on the second Monday of January, 1833, 
the demurrer was argued before the chancellor, and after due consideration 
sustained and, complainant's bill dismissed with costs. From which decree 
there was an appeal to this court. The only question submitted to the 
consideration of the court, is, whether the complainant is entitled to an 
injunction to stay waste, when the defendant is stated to be in possession, 
and holds over under an adverse claim. We think not, and we are supported in 
this opinion by all the adjudged cases in England and America. In Pittsworth 
vs. Heapton, 6 Vesey, Lord Chancellor Eldon says, I do not recollect that the 
court has ever granted an injunction against waste under any such 
circumstances. I remember perfectly being told from the bench very early in my 
life, that if the plaintiff filed a bill for an account and an injunction to 
restrain waste, stating that the defendant claimed by a title adverse to his, 
he stated himself out of the court as to the injunction. See also Davis v. 
Leo, same authority. So in the case of Norway v. Rowe, 19 Vesey, 153, if the 
bill contains a statement, admitting even the pretence of a claim, on the part 
of the defendant, the plaintiff will have to go out of court. In the case of 
Stone v. Maum, 4 Johnson’s Chancery Reports, 21, an injunction to stay waste 
will not be granted, when the title of the plaintiff is doubtful, and when the 
defendant is in possession by an adverse claim. In the case before us there is 
a controversy about the right and title to the land in question, as appears by 
complainant's own shewing. When it is alleged in his bill "he hoped to have 
obtained quiet and peaceable possession of said land, according to the acts of 
Congress under the authority of which they were sold, and the usages in like 
cases. But contrary to this expectation, a certain Stephen Henderson of the 
state of Louisiana, has placed thereon one Edmund Guice, under pretence of 
having claim to such lands, and of having sold the same to one George Salked,” 
thereby directly admitting the adverse claim of the defendant, who remains in 
the possession of the premises. Under such circumstances, we cannot do 
otherwise than affirm the decree of the court below. There was no necessity 
for the defendant to answer, because the plaintiff has admitted every thing 
necessary to enable him to avail himself of the law upon these facts by way of 
demurrer. If this was an application for and injunction to stay the hand of a 
lawless trespasser, the court would still be more circumspect, in compelling 
the plaintiff to show unquestioned evidence of title. The reason of the rule 
must be obvious. The party complaining could not invoke the aid of the 
chancellor unless in a case of irreparable injury and how could a trespasser 
do an irreparable injury to lands of complainant's. He admits defendant's 
claims under pretence of title. When in looking over this class of cases, I 
cannot find a precedent until the time of Lord Thurlow, who relaxed the rigor 
of the rule when irreparable ruin would have followed his refusal, as in 6 
Vesey.

Where plaintiff the proprietor of two adjoining closes, under which were 
mines, one of them being demised to defendant, who opened a mine upon the one 
demised to him. This was held to be waste from the priority, and when 
application was made for an injunction to prevent him from digging in the 
other close, Lord Thurlow hesitated much, but at last granted the injunction. 
First upon the ground of irreparable ruin to the property as a mine; secondly,—
it was a species of trade; and thirdly, upon the principle of this court 
enjoining in matters of trespass, where irreparable damage is the consequence. 
So it seems if the party has an adequate remedy at law, the court will not 
grant an injunction, unless the application be made under very special 
circumstances, as in Stevens vs. Buckman, 1. Johnson's Chancery Reports, 318. 
In some cases the court will interfere in simple trespass, (although the 
injury may not be irreparable,) in order to prevent multiplicity of suits, 
such for instance as the quieting of the rights disputed between the Lords of 
Manors and their tenants. So also the disputes between the tenants of one 
Manor and those of another for it would be to no use that each party should 
institute his separate action of trespass, since it would only determine his 
individual right and not settle the controverted point as to all those who may 
feel themselves interested. If the facts alleged in complainant's bill be in 
the nature of a tort without irreparable injury, the remedy is at law, and if 
the tortfeizer receives a benefit from the trespass, an action shall survive 
against the executor. Then, upon general principles, the chancellor will not 
interfere, unless this remedy should prove inadequate to afford relief, if it 
does a court of equity will decree an account to be taken. 

Chief Justice Hampton concurred.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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