News
Judges and Judiciary
Jun. 18, 2002
Burnt Herbage Trumps Rights to Pasture
Dicta Column - Court Jester - In Harrell v. Hannum & Coleman , 56 Ga. 508 (1876), Judge Logan E. Bleckley held the following for the court, in pertinent part:
Dicta Column
Court Jester
In Harrell v. Hannum & Coleman, 56 Ga. 508 (1876), Judge Logan E. Bleckley held the following for the court, in pertinent part:
This case presents a contest over cattle and turpentine. The herdsman makes a stand against the aggressions of the manufacturer. The man whose vocation is it to turn the herbage into beef rises up against the man who seeks to convert the trees into turpentine. The disputed element is fire. Fire is the friend and ally of him who seeks after turpentine, but the mortal enemy of him who rejoices in the possession of many cattle. The one ranges the forest with his brands of burning; the other, in alarm, cries fire! and clamors for its extinction by a court of equity. And equity, it seems, finds this a difficult business. The fire department of the court is very indifferent. It is wanting in hooks and ladders, engines and other appliances, and has no water works. How equity is to put out fire, or to prevent it from spreading, is more than we know, without some thoughtful consideration. The complainant, however, is in court with application for aid by the writ of injunction; and that is a writ which has arrested many things, and may possibly arrest fire itself. Let us see.
Looking first to the mere power of the court to meddle in the matter, equity cannot interfere to save property, even in cases of conflagration, without he who applies for its aid shows that he has an interest in what is to be burned.
The right alleged must be one which the law recognizes as property. The complainant has made an effort to comply with this indispensable condition by averring that he has, in the woods in question, the right of common pasture for his cattle, which are numerous, and which have been accustomed to range in those woods heretofore. The position of the bill is, not that the burning is a nuisance because the cattle will go there, to their injury, and cannot be prevented from browsing on the impoverished burned patches, so long as the lands are left unenclosed, but that it is the complainant's right for them to be there in the woods and enjoy pasture. This is substantially what is alleged on the subject of his title; and we are constrained to say that it is wholly insufficient.
He does not set forth any contract, prescription or other lawful basis for the right he claims. He presents no state of facts showing it to be a right in him to pasture his cattle there, which would not have equal validity in favor of all mankind. For ought that we can see in his bill, all the inhabitants of Georgia, at least , might claim with him a similar and co-equal privilege.
It will be already clear that in our judgment a court of equity cannot visit the scene of the fire at the complainant's instance. He is, legally speaking, a mere spectator of whatever destruction may happen to the grass into that region, unless he shall choose to change his forum and try penalty instead of injunction.
Judgment affirmed.
Court Jester
In Harrell v. Hannum & Coleman, 56 Ga. 508 (1876), Judge Logan E. Bleckley held the following for the court, in pertinent part:
This case presents a contest over cattle and turpentine. The herdsman makes a stand against the aggressions of the manufacturer. The man whose vocation is it to turn the herbage into beef rises up against the man who seeks to convert the trees into turpentine. The disputed element is fire. Fire is the friend and ally of him who seeks after turpentine, but the mortal enemy of him who rejoices in the possession of many cattle. The one ranges the forest with his brands of burning; the other, in alarm, cries fire! and clamors for its extinction by a court of equity. And equity, it seems, finds this a difficult business. The fire department of the court is very indifferent. It is wanting in hooks and ladders, engines and other appliances, and has no water works. How equity is to put out fire, or to prevent it from spreading, is more than we know, without some thoughtful consideration. The complainant, however, is in court with application for aid by the writ of injunction; and that is a writ which has arrested many things, and may possibly arrest fire itself. Let us see.
Looking first to the mere power of the court to meddle in the matter, equity cannot interfere to save property, even in cases of conflagration, without he who applies for its aid shows that he has an interest in what is to be burned.
The right alleged must be one which the law recognizes as property. The complainant has made an effort to comply with this indispensable condition by averring that he has, in the woods in question, the right of common pasture for his cattle, which are numerous, and which have been accustomed to range in those woods heretofore. The position of the bill is, not that the burning is a nuisance because the cattle will go there, to their injury, and cannot be prevented from browsing on the impoverished burned patches, so long as the lands are left unenclosed, but that it is the complainant's right for them to be there in the woods and enjoy pasture. This is substantially what is alleged on the subject of his title; and we are constrained to say that it is wholly insufficient.
He does not set forth any contract, prescription or other lawful basis for the right he claims. He presents no state of facts showing it to be a right in him to pasture his cattle there, which would not have equal validity in favor of all mankind. For ought that we can see in his bill, all the inhabitants of Georgia, at least , might claim with him a similar and co-equal privilege.
It will be already clear that in our judgment a court of equity cannot visit the scene of the fire at the complainant's instance. He is, legally speaking, a mere spectator of whatever destruction may happen to the grass into that region, unless he shall choose to change his forum and try penalty instead of injunction.
Judgment affirmed.
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