Page:Harvard Law Review Volume 1.djvu/132

 In cases of waste there is seldom any controversy about the title to the land. Acts in the nature of waste, however, frequently raise questions of title; for such acts may be committed by a person who claims to own the land, but whose title is denied by another person who also claims to own the land; and in such a case either of the adverse claimants may be in possession. If the acts be committed by the one out of possession, he can always successfully defend an action of trespass by showing that the land is his. If the acts be committed by the one who is in possession, the one out of possession has no remedy at law, except an action of ejectment to recover the land itself. If he succeed in ejectment, and recover possession of the land, the other’s acts will then (but not till then) become trespasses by relation, and damages may be recovered for them. How, then, will equity deal with such a case, if applied to by either of the claimants to prevent acts of the other in the nature of waste? The chief difficulty arises from the fact that the trial of the title does not belong to equity. Each claimant has a right to have the title tried at law and by a jury. Equity will not, therefore, interfere with the trial of the title. What will it do? If the plaintiff in equity is in possession there is no serious difficulty. Equity will entertain a bill, as in other cases, and will grant a temporary injunction; but the injunction will not be made perpetual until the plaintiff has recovered in an action of trespass; and if the plaintiff fail to bring such an action promptly, or to prosecute it with diligence, the injunction will be dissolved on the defendant’s application. So, if the action be defended successfully, the bill in equity will be dismissed. If a temporary injunction be obtained before any trespass has been committed, of course the plaintiff in equity cannot maintain trespass upon the actual facts; but equity will get over that difficulty by directing the plaintiff to bring his action, and to declare in the usual form, and by directing the defendant not to traverse the declaration, but to plead only his affirmative defence of title.

When the plaintiff in equity is out of possession the difficulty is much greater. The acts of the defendant are not then trespasses, or torts of any kind, until made so by fictitious relation. How, then, can equity grant an injunction against acts which confessedly, upon the facts before the court, are not wrongful? Our law may be open to criticism for making no provision (except such as is made by the statutes against forcible entry and detainer) for