Page:Harvard Law Review Volume 12.djvu/116

96 HARVARD LAW REVIEW. This is the view constantly acted on, although not often ex- pressed. But when the courts are pressed upon the subject they re- spond in unmistakable terms. These tendencies are well illustrated, and the true spirit of equity jurisprudence breathes, in the opinion delivered by Judge Ross of the United States Circuit Court of Appeals, Ninth Circuit, in the case of Northern Pacific R. R. Co. v. Hussey.^ In that case the plaintiff, under an act of Congress, was entitled to every odd section of certain lands on each side of its railroad line, the lands to be surveyed by the United States. Before this survey was made, and before, therefore, the railroad company could know which particular sections of land it would be entitled to, the defendant, a mere trespasser, entered upon the lands and cut timber therefrom in such manner that the denuded portions would fall within the odd as well as the even sections when the survey would be made. And he was continuing these acts of tres- pass when the plaintiff sought an injunction to restrain these acts, which was denied by the court below. The lands in question were valuable alone for the timber that grew upon them, and to cut down, destroy, or carry away the timber thereon was, therefore, essentially to destroy and take away the very substance of the estate. Here the plaintiff had no title to particular lands, and therefore could not maintain any action for damages for the asportation of any particular tree or trees. " The case," said the court, " is a novel one, it must be admitted ; but when so great a wrong is being perpetrated, as must be taken to be true for the purposes of the present decision (a demurrer to the bill had been sustained below), and the party seeking to prevent the wrong has no adequate remedy at law, equity, we think, will afford the remedy. * Ubi jus ibi remedium ' is the maxim which forms the root of all equitable decisions." He then quoted with approval the language of Ricks, District Judge, in Toledo, etc. Ry. Co. V. Pennsylvania Co.,^ in which a mandatory preliminary in- junction had been granted, and certain parties were before the court on a motion to punish them for contempt in violating the orders which had been made : " It is said the orders issued in this case are without precedent. Every just order or rule known to equity courts was born of some emergency, to meet some new con- ditions, and was, therefore, in its time without a precedent. If 1 {1894) 61 Fed. Rep. 231. ^ (1893) 54 Fed. Rep. 746, 751.