Rodgers v. Rodgers

By the Court,

Marvin, J.

What is the action the pleader has attempted to state in this complaint ? What are the causes or cause of action ? How many causes of action are stated, one or more ? Facts, conclusions of law, and reliefs prayed, are so jumbled together that it is difficult to answer these questions. It was called, upon the argument, an action of waste ; and it was said that the object of the plaintiff is, to obtain damages for the combined acts of the defendants, and a perpetual injunction to restrain them from committing further waste. The plaintiff’s counsel referred us to section 450 of the code, abolishing the action of waste, and substituting the remedies given by the code for the wrongs heretofore remediable by action of waste. ■

Does the plaintiff intend and expect to recover “ the place wasted and treble the damages found by the jury,” (2 R. S. 335, s 10,) or “ forfeiture of the estate of the party offending, and eviction from the premises?” (Code, § 450.) I presume not. He has not demanded any such relief. The relief he demands is an injunction, and damages by reason of the wrongful acts committed by the defendants together. The case then is to be regarded not strictly as an action of waste, or rather as the action allowed by section 450 of the code as a substitute. Is it to be regarded as the old action on the case in the nature of waste, which lay for the same acts or omissions as the writ of waste, when the acts or omissions were injurious to the reversion? (Arch. L. & T. 201.) In the action of waste the plaintiff was obliged to set out his title; but in case it was not necessary. (2 Saund. 252, notes c. & d. Arch. L. & T. 204, and forms. Conyn's L. & T. 293. 2 Chit. Pl. 784, declaration in case.) Case for injury to the reversion, and trover, when the property, by severance from the realty, had become chattels, could be united in the same declaration. (Chit. Pl. supra.)

In the present case, if we regard this simply as an action to recover damages for injuries to property, (Code, § 167, class 3d,) I see no objection to stating in the complaint the cause of action for wrongfully cutting, removing and converting the wood; and also the cause of action for drawing off the wood which had b'een cut, and converting it. The one cause of action would have been in case, in the nature of waste, and the other in trover for removing the wood which had been cut and thus became personal property. (Schermerhorn v. Buel, 4 Denio, 422.) The causes of action would “ all arise out of” “ injuries with or without force to property.” (Code, § 167.) In this view of the complaint, it would be important to inquire how many causes of action are set forth, and we should find three distinct statements of causes of action. The first against E. Rodgers alone, for cutting and removing the timber ; the second against both defendants for cutting and removing, &c., and the third against both defendants for removing fire wood already cut, and converting it. Each of the statements is followed by the consequence, viz. injury to the inheritance and reversionary interest of the plaintiff, &c.

These causes of action can be united, under the code, if they affect all the parties to the action; (§ 167;) but in this case the first cause stated is against only one of the defendants, and it was not proper to unite this with the causes of action against both.

The defendants’ counsel has evidently regarded the complaint as stating several causes of action, the recovery of damages being the main object; and the manner employed in framing the complaint and stating the injuries, gives countenance to this view. The pleader has resorted, in stating the wrongs committed, mainly to the forms used in an action on the case in the nature of waste. (See forms in Chit. Pl.) And in the view taken by the defendants’ counsel, he supposes that section 167 of the code, relating to the union of several causes of action in the complaint, is controlling. After a careful consideration of the complaint I have come to the conclusion that this is not the proper view to take of it. There are many actions not embraced in section 167, and to which that section has no application. Upon considering the entire complaint, I think the pleader intended to state a case, the main and leading object of which was to obtain an injunction to restrain future waste. This would be an action of purely equitable cognizance, and as incidental to this jurisdiction the court, where waste has been committed, will, to prevent a multiplicity of suits, direct an account and satisfaction for past injuries. (Arch. L. & T. 207. 2 Story’s Eq. §§ 917, 919. 1 Id. 515, 516. Cooper’s Eq. Pl. 150.)

The pleader, after stating the several wrongful acts of the defendants, the cutting and removing the timber, puts forth prominently the threats of the defendants to “ commit more waste,” and alledges that they will do so unless restrained. The prayer is for an injunction, and for damages sustained by reason of the wrongful acts committed by the defendants together.

When the statement of facts constituting a cause, or causes of action, will support either of two actions, and it is doubtful which the pleader intended, the demand for judgment may be consulted with a view of ascertaining the action intended. (Spaulding v. Spaulding, 3 How. Pr. R. 297. Daws v. Green, Id. 377.)

By section 69 of the code, the distinction between actions at law and suits in equity, and the forms of such actions and suits, are abolished, and it is declared there shall be but one form of action. The form is not prescribed, and we must look elsewhere for the rules of pleading. The great and leading rule is, that the complaint shall contain a plain and concise statement of the facts constituting the cause of action; and it is undoubtedly true that the great test in determining the character of the action, is to look at the statement of facts. If these facts, however alike, indicate either of two or more actions, then we may look to the relief demanded, and that may settle the doubt. And if several causes of action are united we may apply the same rules.

Courts of equity had jurisdiction to restrain waste, upon a bill filed, stating the facts. The complainant might show in his bill, and may now show in his complaint, the acts of waste begun, and those threatened, and in a proper case, he may have an injunction to restrain the tenant from completing or continuing the waste, or from taking any steps to effect the waste threatened. The court must be satisfied that the acts of waste will be committed if it does not interfere, and, for this purpose, the complaint may show that the party has actually commenced waste, or that he has threatened to commit it. (Arch. L. & T. 206. Comyn's L. & T. 485.)

The injunction may be awarded against Jones in this case. It may be granted against any one who colludes with the tenant to commit waste. (10 Vesey, 290.) And to prevent irreparable injury it may be granted against a trespasser. (2 Story’s Eq. 928, 929, and cases cited. Livingston v. Livingston, 6 John. Ch. 497. 1 Paige, 97.) And an account will be ordered, to save the plaintiff the necessity of going to law to obtain his damages. (Story’s Eq. 929. 18 Ves. 184.) The court has as ample jurisdiction now to decide and dispose of the whole matter as the court of chancery formerly had.

There is no difficulty then in applying the remedy by injunction, and account for damages, to the defendant Jones, who has been let into possession by the tenant Rodgers; even if he was not strictly liable to be proceeded against as the assignee of the tenant Rodgers.

The complaint is very inartificially drawn, but the gravamen of the action is the danger of future waste, to prevent which the injunction is demanded. Accounting for past waste is incidental to the jurisdiction to award the injunction. So regarding the complaint it states hut one cause of action. All the facts are stated as the ground upon which the plaintiff rests his claim to an injunction. They are quite sufficient. The complaint contains some surplus matter, hut that can not he reached by demurrer. There should be judgment for the plaintiff upon the demurrer, with leave to the defendants to answer, &c.

[Erie General Term, April 26, 1852.

Taggart, Marvin, Hoyt and Mullett, Justices.]