Arment v. Hensel

Dunbar, J.

(dissenting).—I am unable to concur in the majority opinion. I think in the first instance the demurrer to the complaint should have been sustained. The *155allegations of the complaint were not sufficient to bring it under the provisions of § 663 of the code, for it does not appear from the complaint that there were two or more claimants under the laws of the United States to the land in question, which is a condition precedent to relief under that section, and it is admitted by the respondent that the complaint would not be good outside of the provisions of that section. But this being a case of equitable cognizance the subsequent answer must be held to correct the complaint in that respect, as it alleges a claim of the defendant to the land under the laws of the United States.

Under the pleadings and proofs, however, I think the plaintiff failed to make out his case. I cannot give as broad a construction to the statute as my brothers do. I do not think there is anything in the language used that will justify the conclusion that equity can be invoked until it appears that there is no legal remedy, or that implies that there is no legal remedy in this kind of a case. Why will not ‘ ‘ damages compensate the loss of trees ? ” It is certainly not a sentimental loss which the statute is guarding against. If it is not, but it is actual damage which can be estimated, equity will not interpose until it appears that the law is powerless. This was the theory of the complaint. Many of the allegations are of actual, estimated damages, including the value of wood cut, alleged to be of the value of one hundred dollars, which the plaintiff asked to have the defendant restrained from removing; damage to the meadows, etc. To bring himself within the rule, and sustain the conclusion of law, pleaded ‘ ‘ that he had no plain, speedy or adequate remedy at law,” the plaintiff alleges the fact to be that the defendant is insolvent, and unable to respond in damages for said wrongful acts and trespasses. This, I think, was a material allegation, and one which was necessary to sustain the complaint. Being necessary to allege it, it is equally necessary to prove it, it *156being denied by the answer. Nothing appears either in the proof or the findings of fact to sustain this allegation, and the relief asked for should, therefore, I think, have been denied. I have nothing to urge against the policy of the law absolutely restraining claimants under such circumstances from cutting timber, or from committing any other kind of waste, and am perfectly willing to concede that such enactment would be a wise and wholesome one, but I cannot thus construe said § 663.