#### LUMBER COMPANY v. CEDAR COMPANY.

(Filed October 23, 1906).

Trespass — Irreparable Damage — Injunctions—Timber Trees —Practice—Prima facie Title — Exceptions in Grants— Biufjiciency — Burden of Proof.

1. Before a court of equity would exercise its jurisdiction to enjoin civil trespasses two conditions were required to concur, namely, the plaintiff’s title must have been admitted or manifestly appear to be good, or it must have been established by a legal adjudication, unless the complainant was attempting to establish it by an action at law and needed protection during its pendency, and secondly, the threatened injury must have been of such a peculiar nature as to cause irreparable damage.

2. The usual method of showing irreparable damage, when the trespass was the cutting of timber trees, was by alleging and proving insolvency. But by the Revisal, sec. 807 (Acts of 1885, ch. 401), it was provided that in an application for an injunction it shall not be necessary to allege insolvency when the trespass is continuous in its nature or consists in cutting timber trees.

3. Rev., sec. 808 (Acts of 1901, ch. 666), provides that when the Judge finds it to be a fact that the contention on both sides, as to the title to the land and the right to cut timber thereon, is tona, -fide and is based upon evidence of facts constituting a prima, faoie title, *412neither party shall he permitted during the pendency of the action to cut the trees, without the consent of both, until the title is regularly determined.

4. Rev., sec. 809, provides that if it is found that the contention of either party is in good faith and is based upon a prima facie title, and the Court is further satisfied that the contention of the other party is not of that character, it may allow the former to cut the trees upon giving bond to secure the probable damage, as required by law.

5. In an action to enjoin the defendant from trespassing on certain land by cutting timber, where the defendant exhibited a perfect paper title to three tracts and adduced testimony reasonably sufficient and satisfactory to show the location of the land included within the boundaries of those three tracts, and that he has acted in good faith in all respects, and the plaintiff made no claim to these tracts, the Court erred in enjoining the defendant from cutting timber on said three tracts.

6. A party claiming land to be within an exception must take the burden of proving it.

7. An exception in a grant of 167,500 acres “within whicli bounds there hath been heretofore granted 22,633 acres, and is now surveyed and to be granted to P 9,600 acres, which begin at J’s northeast corner of 2,000 acres grant on Mill Tail and runs south and east for complement,” is sufficiently certain to 'exclude the lands therein described from the operation of the grant.

ActioN by East Lake Lumber Company against East Coast Cedar Company and others, pending in tbe Superior Court of Dare, and beard by Judge W. II. Neal at chambers on 14 August, 1906, on a motion for an injunction.

The plaintiff brought the action to restrain the defendants from trespassing on the land described in the complaint by cutting and removing timber therefrom, some of the defendants having a large plant and being engaged extensively in the timber business. The Court granted an injunction to the hearing and the defendants appealed. The plaintiff claimed to be the owner of a large body of land in Dare County, which was granted to John Gray Blount, I September, 1J95, and said to contain 100,000 acres, according to the quantity *413given in the grant, but in fact a much larger acreage, that is, about 167,500 acres. The grant is said to embrace all of the county of Dare, except Roanoke and perhaps Durant Island and the Banks. It contains an exception, as to senior grants and entries, which is thus stated in the grant: “Within which bounds there hath been-heretofore granted 22,633 acres, and is now surveyed and to be granted to Mr. George Pollock, 9,600 acres of which begins at Samuel Jackson’s northeast corner of 2,000 acres grant on Mill Tail and runs south and east for complement.” As the context shows that the word “of” was evidently inserted in the copy by mistake, we have compared it with the original in the office of the Secretary of State and find this to be so. A correct copy is set forth in Manufacturing Go. v. Frey, 112 N. C., at p. 159. The word “of” should be stricken out and the comma should be placed after the word “acres” and before the word “which,” instead of after the word “Pollock” and before the figures “9,600,” so that the exception when properly quoted will read: “Within which bounds there hath been heretofore granted 22,633 acres, and is now surveyed and to be'granted to Mr. George Pollock 9,600 acres, which begin at Samuel Jackson’s northeast corner of 2,000 acres grant on Mill Tail and runs south and east for complement.” The plaintiff asserted title to the entire body of land covered by the said grant, with which it claimed to have connected itself by mesne conveyances. The defendants denied they had committed any trespass on land alleged to be owned by the plaintiff and contended here that the plaintiff had not shown any such trespass by the proof, and further, they averred that they have cut no timber except on land which is either excepted in the Blount grant, under which the plaintiff claims, _ or the title to which as being in the defendants, or those under whom they claim, the plaintiff is estopped to deny, the title to the said lands having been fully adjudicated, and as to some of them the location fixed, in judicial proceedings by which the plain*414tiff is in law bound and concluded. Tbe two defendant companies disclaim any title to tbe land in dispute and deny that they bave cut any timber on tbe same or on any land of tbe plaintiff, or that they bare ever authorized any one else to do so, but aver that they bave not recently been engaged in tbe business of cutting timber in Dare County. Tbe plaintiff alleges that all of tbe defendants are operating under tbe name of tbe Buffalo City Mills, Incorporated, and bave changed their business name from time to time for tbe purpose of defeating tbe process of tbe Court, and thereby escaping liability for their unlawful trespasses. This is denied by tbe defendants and tbe counter-charge made that tbe plaintiff is an insolvent foreign corporation and a land speculator; that tbe title to tbe land claimed by it is radically defective and its boundaries bave not been shown, and that tbe land claimed to be embraced by its outer lines is occupied by hundreds of people whose titles and right of possession are undisputed and unassailable. Tbe defendant sets forth circumstantially its title to tbe tracts of land upon which it has cut timber. As to tbe “McRae Tract” of 5,080 acres and tbe “Blount-Rodman tract” of 5,000 acres, they allege that tbe plaintiff is estopped by certain judicial proceedings to deny the title of those under whom tbe defendants claim' and justify their acts, which are alleged to be trespasses, and tbe defendants deduce their title to these tracts from tbe State, by showing grants duly issued for tbe same and judicial proceedings and mesne conveyances, which put tbe said title in the Buffalo City Mills, Incorporated, Andrew Brown and A. J. Brown, respectively, it being tbe title under which A. J. Brown claims and “bis co-defendants so justify. As to tbe other land, .known in tbe case as tbe “Pollock tract,” tbe defendants introduced tbe record of a suit in equity pending-in tbe United States Circuit Court, between tbe plaintiff and tbe Buffalo City Mills, Incorporated, and referred specially to tbe third section of tbe complainant’s bill, in which it is *415admitted that the said tract of land is not covered by the John Gray Blount patent, but is excepted therefrom, the specific admission being that the exception in that grant, heretofore mentioned, comprises 22,633 acres previously granted, and the Pollock survey of 9,600 acres, for which a grant was to be issued and was in fact afterwards issued to George Pollock upon his entry and survey. This conforms the description of the exception in the Blount grant to what we have said is the correct one. The defendants then show that Pollock’s title was thereafter acquired by A. J. Brown, under whom the other defendants, except the two corporations, justify. The plaintiff admitted in this case that it did not own either the McRae or the Blount-Rodman tract, nor does the plaintiff apparently lay any valid claim to the Pollock land, 3,000 acres of which it admits has been properly located, though it denies, perhaps, that there has been any correct location of the remainder of that tract or of the McRae and Blount- • Rodman tracts. It appears that the grant for the last-named tract, which was issued 5 September, 1795, antedates the John Gray Blount patent, issued 7 September, 1795, and the defendants rely on this fact, in addition to the estoppel. There was much testimony taken as to the true location of these three several tracts, the defendants alleging that they had been correctly located and exhibiting carefully prepared maps showing the lines and boundaries, while the plaintiff insisted that they had not been identified by any competent and sufficient testimony, though apparently it does not profess to know or to be able to state where the metes and bounds would be with reference to the lines of the John Gray Blount patent, if they were surveyed and marked on the ground. They simply deny the defendant’s location. There was also considerable testimony taken as to the locus in quo or place in which the cutting of the timber was done. The defendant contended that, according to the evidence offered by the plaintiff, the timber alleged to have been cut was standing on the *416McRae, tbe Hanning, tbe Belangia and tbe Blount-Rodman tracts, tbe land lying north of tbe McRae tract, on wbicb tbe plaintiff alleges there was cutting of timber, being tbe Belan-gi'a tract, and that on tbe east tbe Blount-Rodman tract. Tbe plaintiff introduced tbe record in tbe case of tbe Fast Goast Gedar Go. v. Peoples Bank of Buffalo, it being a suit for partition, tbe object of this proof being to estop tbe defendants (by tbe decree declaring tbe parties to be tenants in common) from denying tbe title of tbe plaintiff to tbe land covered by tbe Blount patent, tbe assignors of tbe respective ¡íarties to this action having been parties to that suit. Tbe insolvency of tbe defendant is alleged in tbe complaint, but denied in tbe answer.

Tbe Court enjoined tbe defendants from cutting trees, logs and timber on or removing them from tbe premises described in tbe complaint, being the lands covered by tbe Blount grant, and enjoined both the plaintiff and the defendant from cutting any timber on tbe lands described in tbe McRae, Pollock, Blount-Rodman patents, until tbe true location thereof is established by surveys made under its orders; and from this order tbe appeal of tbe defendant was taken to this Court.

Pruden & Pruden and Shepherd & Shepherd for tbe plaintiff.

Aydlelt & Bhringhaus and F. PL. Busbee & Son for tbe defendant.

Walker, J.,

after stating tbe case: As a general rule, a court of equity did not exercise its jurisdiction so as to enjoin offenses against the public or'civil trespasses. Tbe rule as to the former seems to have been without exception (Paul v. Washington, 134 N. C., 363), but, as to tbe latter and after much hesitation, it finally assunied jurisdiction for tbe prevention of torts or injuries to property by means of an injunction, under certain safeguards and restrictions, and two conditions were required to concur before it would thus *417interfere in those cases, namely, the plaintiff’s title must have been admitted or manifestly appear to be good, or it must have been established by a legal adjudication, unless the complainant was attempting to establish it by an action at law and needed protection during its pendency, and secondly, the threatened injury must have been of such a peculiar nature as to cause irreparable damage, as, for instance, in the case of the destruction of shade trees or of any other wrongful invasion of property which, by reason of the character of the property or the form of the injury, rendered the wrong incapable of being atoned for by compensation in money, such as torts committed on property and things having a value distinct from their intrinsic worth: for instance, a pretium-affectionis, though not a merely imaginary value. It was held in England that the destruction of timber trees would be enjoined because it was thought to be destructive waste which impaired the substance of the land — an injury to the freehold — but the settled doctrine of this Court was that the mischief wrought by such a trespass was not irreparable in itself, and did not become so, unless it was shown that the trespasser was insolvent. Courts of equity could not conveniently, on account of their peculiar constitution, try the title to land, and hence the necessity for having the title established as one of the essential prerequisites to the exercise of its jurisdiction, and it would not proceed unless it further appeared that adequate redress could not be had at law or the legal remedy would be ineffectual, so that the courts, proceeding according to the course of the common law, could not meet the requirements of justice. The principle upon which courts of equity took cognizance of such cases and administered the right through its remedial process of injunction, with the limitations thereof made necessary by practice and experience, has been clearly settled by the decisions of this Court. Gause v. Perkins, 56 N. C., 177; Irwin v. Davidson, 38 N. C., 311; Thompson v. Williams, 54 N. C., 176; *418 Lyerly v. Wheeler, 45 N. C., 267; Bogey v. Shute, 57 N. C., 174; Thompson v. McNair, 62 N. C., 121; Newton v. Brown, 134 N. C., 439; Roper Lumber Co. v. Wallace, 93 N. C., 22; Lewis v. Roper Lumber Co., 99 N. C., 11. The usual method of showing irreparable damage when the trespass was the cutting of timber trees, was by alleging and proving insolvency. But by the Acts of 1885, ch. 401, it was provided that in an application for an injunction, it shall not be necessary to allege insolvency when the trespass is continuous in its nature or consists in cutting timber trees. Revisal, sec. 807. The Act of 1901, ch. 666, provided that when the Judge finds it to be a fact that the contention on both sides, as to the title to the land and the right to cut the timber thereon, is bona fide and is based upon evidence of facts constituting a prima facie title, neither party shall be permitted during the pendency of the action to cut the trees, without the consent of both, until the title is regularly determined. Revisal, sec. 808. But if it is found that the contention of either party is in good faith and is based upon a prima facie title, and the Court is further satisfied that the contention of the other party is not of that character, it may allow the former to cut the trees upon giving bond to secure the probable damage, as required by law. Revisal, sec. 809. We believe this exhibits, in a general way, the course of decision and legislation upon the subject, which has at this time become an exceedingly important one, in view of the ever-increasing and expanding business of cutting timber trees in our forests for the purpose of sale and manufacture. It would appear that the growth of the timber industry in the State was the cause of the legislation in the recent past, which was enacted, not only to protect our forests against depredations and consequent useless denudation, which is a most wholesome policy, but with the further object of preventing unlawful invasions of lands for the purpose of cutting timber thereon, in favor of the land-owners of the State, who might *419bave found little or no protection in tbe law as it existed at the time of these radical changes. We should construe and enforce these laws so as to execute this intention, but at the same time the principles of the former system which remain should also be allowed their full operation.

Let us now examine this case in the light of what we have already said. Under the Act of 1885, and even before its passage, it was held that the Court would not interfere with the cutting of timber, if there was no irreparable damage, in its strictly technical sense, and the plaintiff could be compensated in damages; and therefore a bond was required, instead of issuing an injunction, and a receiver was appointed to ascertain and report the quantity and value of the timber cut by the defendant. Notwithstanding the Act of 1885, this Court was still averse to stopping important enterprises by injunction if the plaintiff could otherwise be secured against loss, and in such a case it directed a bond to be given and a receiver to keep the accounts. Roper Lumber Co. v. Wallace, supra; Horton v. White, 84 N. C., 297; Lewis v. Lumber Co., supra. This procedure, as we have seen, is. forbidden by the Act of 1901, ch. 666, without the consent of the parties, where the dispute is bona fide on both sides and founded upon titles prima facie good, and only permitted when one of the parties is at fault and the other not. Johnson v. Duvall, 135 N. C., 642. In our case the Court did not proceed altogether under the statutes above enumerated, but found as facts that this is an action to try the title to land, which is chiefly valuable for its timber; that the contention of the defendants is not made in good faith, nor is it based on evidence sufficient to constitute a title prima facie good, and that the plaintiff’s contention is bona fide and its evidence shows a prima facie title to the land in dispute. The defendants, upon this finding, are enjoined from cutting any timber upon the McRae, Pollock and Blount-Rodman tracts of land until the true location of those tracts is established by surveys to be made *420raider the order of the Court. We are unable to agree with the learned Judge, for we do not think the order of injunction can be sustained in law by the case as made in the record. In the present state of the proof, however it may be varied when fully developed by cross-examination at the trial, it can hardly be questioned that the defendants have exhibited a perfect paper title to the three tracts named in the order, and in our judgment they have adduced testimony, oral and documentary, which at this stage of the case is reasonably sufficient and satisfactory to show the location of the land included within the boundaries of those three tracts. It is in both respects, at least prima facie, a good title which they have shown. Indeed, the paper title being without any apparent flaw, we do not see how, under the circumstances, and where no order of survey has been made by the Court, they could have been more definite and explicit in their proof. They have offered evidence of surveys and diagrams of the land, showing the situation of them with reference to the land described in the John Gray Blount grant, as it is' alleged to be located, and the plaintiff attempted to meet this proof and overcome it to the extent of convicting the defendants of bad faith by merely asserting, and offering testimony exceedingly general in its character to show that the location is not correct, but without undertaking to inform the Court where the proper one should be with reference to the larger body of land covered by the patent under which they claim. We cannot believe that the law as it formerly was, nor as it now is under recent statutes, contemplated that one of the parties should have an advantage over his adversary upon such a showing. As far as we are able to see, the defendants have acted in apparent good faith in cutting the timber and in defending this suit, and they have presented proof which shows prima facie that they have title to those three tracts. The finding of facts by the Court must be set aside, and the contrary finding is made by us, namely, that the defendant *421bas acted, or is acting, in good faitb in all respects, and bas prima facie a title to tbe said three tracts of land.. While it is true tbe order for tbe injunction is not confined to tbe three tracts we have named, but extends to all tbe land embraced by tbe Blount patent, it nevertheless appears that tbe plaintiff makes no claim to them or either of them. Why should tbe defendants, at tbe instance of tbe plaintiff, be enjoined fropi trespassing on lands which do not belong to tbe plaintiff, and to which it makes no claim, as the brief of counsel and tbe argument before us show? Tbe Court having also enjoined the defendants from cutting timber on any land within tbe external boundaries of the Blount patent, and outside of tbe boundaries of tbe three tracts to which tbe defendants assert title, tbe defendants will have to cut timber, under our decision, if at all, at tbe risk of violating tbe order of tbe Court, and should, therefore, be quite sure that the lands claimed by them are properly located under their paper title. As it now appears, whatever may have been intended, tbe defendants have in part been enjoined from cutting timber on land which belongs to them, and which, of course, tbe plaintiff bas no right or equity to protect by injunction. We are not aware of any principle requiring tbe owner of land to stop using it in tbe ordinary way, until it bas been located, and no authority sustaining tbe validity of an order to that effect was cited to us.

We have not discussed tbe many other questions argued before us and presented in tbe elaborate briefs, because, in view of tbe admissions and tbe facts appearing in tbe case, we do. not find it necessary to do so. It has been assumed, and it so appears at present, that tbe plaintiff is tbe owner of the title alleged to have been derived from tbe Blount patent. Tbe questions so ably and learnedly considered in tbe brief of plaintiff’s counsel as to Us pendens, res judicata and the validity of tbe deed to tbe plaintiff, which is questioned by tbe defendant, and other controverted matters, need not be *422considered at this stage of the case, and the same may be said of the other questions debated by counsel. Both parties seem to have acted in good faith — the plaintiff, as to the claim under the Blount patent, and the defendants as to their claim of the three tracts named in the order.

As to the exception in the Blount grant, it may now be taken as settled law that a party claiming land to be within, an exception must take the burden of proving it. Gudger v. Hensley, 82 N. C., 481; McCormick v. Monroe, 46 N. C., 13; King v. Wells, 94 N. C., 344. The reference in an exception to lands previously entered or granted is sufficient to let in evidence of identification under the maxim, id cerium est quod certum reddi potest. Brown v. Rickard, 107 N. C., 639; Gudger v. Hensley, 82 N. C., 481; McCormick v. Monroe, 46 N. C., 13; Melton v. Monday, 64 N. C., 295; Scott v. Elkins, 83 N. C., 424; Midgett v. Wharton, 102 N. C., 14; King v. Wells, 94 N. C., 344, and Manufacturing Co. v. Frey, 112 N. C., 158, which relates to this very grant. The exception of a definite number of acres without any description or reference by which to locate them, is of course void for uncertainty, as the reservation of 5,000 acres out of a larger body of land granted. Waugh v. Richardson, 30 N. C., 470; McCormick v. Monroe, supra; Robeson v. Lewis, 64 N. C., 734. But these questions have now become immaterial and we refer to them merely to show that they have not been overlooked, as they were strenuously pressed upon our attention. The Pollock grant is of course within the exception ; the Rodman grant also antedates the Blount patent, and the title to the McRae tract is shown by proof sufficient to vest the title in the defendants apart from any consideration of the exception or of plaintiff’s title under the Blount patent. We should add that since we have shown, in the statement of the case, the correct wording of the exception in the Blount patent, there can be no doubt that under the cases we have cited it is sufficiently certain to exclude the lands therein described from the operation of the grant.

*423We do not pass upon the merits of this controversy, and could not do so when considering an interlocutory order for an injunction to the hearing. The truth of the matter cannot now be known, as a great deal of the evidence is merely ex-par te, and has not been subjected to those tests ordinarily required to elicit the truth. What we have said, therefore, should not be used to the prejudice of either party in the further investigation of the case. It is applicable only to the particular question now being decided and does not relate to the merits as they may finally be disclosed.

The finding and order of the Court below as to the McRae, Pollock and Blount-Rodman tracts of land was erroneous, and is, therefore, reversed, and as to those tracts the injunction will be dissolved, as to both parties. In other respects it will remain in force. One-half of the costs of this Court will be paid by the plaintiff and the other half by the defendants.

Error.