Hihn v. Peck
Before: Baldwin
Synopsis
jhr a bill for partition, among tenants in common and for injunction against cutting timber trees : Held, that defendants, being tenants in common, have the right to the enjoyment of the common estate, and to cut timber and use or dispose of it, at least to an extent corresponding to their share of the estate; and that, as the complaint neither avers the insolvency of defendants, nor that they are exceeding this share, injunction does not lie.
Query: whether injunction would lie in such case, even if insolvency and excessive use of timber were averred.
Baldwin, J. delivered the opinion of the Court Cope, J. concurring.
Bill for partition, and for injunction against cutting timber trees by the defendants. The defendants being tenants in common had a right to the enjoyment of the common estate, and to cut timber and use or dispose of it, at least, to an extent corresponding to their share of the estate. No insolvency is averred ; nor that they are exceeding this share, nor any other facts which entitle them to this injunction. It is not necessary to decide whether these facts as to insolvency and excessive use of the timber would entitle the plaintiffs to the relief they seek. It is certain that upon this bill they are not so entitled.
Order granting injunction reversed, the injunction dissolved, and cause remanded.
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