Plaintiff, averring himself to be the owner of an undivided half interest in and to certain timbered lands, and setting out his chain of title thereto, and alleging that the defendant was trespassing upon the lands by cutting timber therefrom, and that he had down a large quantity of cypress logs, cut from the land, and was about to remove the same, and that the principal value of the land consists in the cypress timber upon it, and the cutting of same would work him an irreparable injury, sued out a writ of injunction restraining defendant from the acts of trespass complained of, and from removing the logs which he had already cut.
His prayer was for perpetuation of the injunction, for judgment decreeing his ownership of an undivided half of the land and of a like interest in the timber that had been cut from it and was then floating in a lake near the land. He also prayed damages for the trespass committed and for attorney’s fees.
In granting the order for injunction, the clerk of the court (acting in the absence of the Judge from the Parish) directed the plaintiff to give bond, with security in the sum of $100.00, “as the law directs.”
The law directs an injunction bond to be given in favor of the defendant. Code Prac. art. 304.
The bond in question was made payable to the Clerk of the Court.
Defendant filed a motion to dissolve the injunction because.of this defect in the bond, and asked damages for attorney’s fees in procuring the dissolution.
This motion prevailed; the injunction was dissolved; and defendant was awarded a judgment- against plaintiff for fifty dollars damages as attorney’s fees.
- Plaintiff appeals, and in this Court defendant files a motion to dismiss the appeal on the ground that the judgment appealed from is an interlocutory order or decree, which does not work plaintiff an irreparable injury.
Ruling — The motion to dismiss is not well taken. Following the service of the writ upon him, defendant applied to the court to bond the injunction. He set up title in himself to the whole property and averred his long possession of it.
A consent judgment was entered up denying defendant’s application to dissolve the injunction on bond, except as to the timber already cut and down. As to the timber cut and severed from the soil, fixed at 2,069 logs all told, defendant was permitted to bond the injunction in the sum of $3,000.00, and remove the logs. 0
Following this, the motion to dissolve the injunction because of the defective bond plaintiff had given was filed.
Plaintiff had alleged in his petition for the injunction that his interest in the land and timber was worth $2,500.00, and because of the valuation thus put upon it, defendant insists that the injury plaintiff apprehends is compensable in money and is, therefore, not irreparable, and if not irreparable, supposing it to be an interlocutory judgment, it cannot be appealed from.
Many decisions affirm the right of a plaintiff in injunction to appeal suspensively from an order or judgment dissolving the writ.
*448See State ex rel. Behan v. Judge, 32 La. Ann. 1276, and authorities there cited.
Conceding, for the argument, defendant’s position to be correct, that the judgment here appealed from is interlocutory in character, what then? Irreparable injury is alleged and plaintiff’s allegations, which are to be taken as true for the purpose of the trial of the motion to dissolve, make him an owner in indivisión of the land and make defendant .a trespasser.
A judgment dissolving an injunction taken against acts of trespass, even if interlocutory in character, is appealable. In contemplation of the law the injury is irreparable. Garland’s Code of Practice, art. 566, and notes and authorities thereunder.
If plaintiff owns an undivided half interest in the land and defendant the other undivided half interest (and such we understand to be the contention of the plaintiff), the defendant has no right to cut the timber on the land without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, for the act is in the nature of a. trespass, and such injunction is not one that may be dissolved on bond.
Nor is this affected by the fact that in his petition for injunction the claimant owner, or part owner, may assert the land and the timber thereon to be of such value — naming the amount. An allegation of value was necessary to determine the proper jurisdiction on appeal. State ex rel. Hake v. Judge, 52 La. Ann. 105, 26 South. 769, and authorities there cited.
The motion to dismiss is denied.