United Timber Corp. v. Bivens

• Citation: 248 F. 554
• Decision Date: 20 February 1918
• Docket Number: 189.
• Parties: UNITED TIMBER CORP. v. BIVENS.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

248 F. 554

UNITED TIMBER CORP. v. BIVENS.

No. 189.

United States District Court, E.D. South Carolina.

February 20, 1918

Legare Walker, of Summerville, S.C., and L.D. Lide, of Marion, S.C for plaintiff.

Bryan &amp Bryan, of Charleston, S.C., and Holman & Boulware, of Barnwell, S.C., for defendant.

CONNOR District Judge.

Plaintiff alleges: That defendant is the owner of several tracts of land, some of which are contiguous, situate in Dorchester and Colleton counties, South Carolina, aggregating several thousand acres. That by virtue of the deeds, attached to the bill, plaintiff corporation is the owner of the standing and growing timber on said tracts of land, with rights of way and other easements on and over said lands. That in the several deeds, under which plaintiff deraigns its title to the timber, are grants of a license to enter upon said lands at any time, during the period of 10 years from the dates thereof, and to cut and remove said timber, and a license, in fee, to construct tram roads, railroads, etc., on and over said tracts of land, for the purposes set forth in the deeds. That, in addition to the license extending over the period of 10 years, granted to the owners of the timber the deeds contain the following provision:

"In case the said timber is not cut and removed before the expiration of said period, then that the said second party, his heirs, or assigns, shall have such additional time thereafter as he or they may desire, but in the last-mentioned event the said second party, his heirs, or assigns, shall, during the extended period, pay interest on the original purchase price, above mentioned, year by year, in advance, at the rate of 6 per cent. per annum."

That the period of 10 years expired several years since. That, in accordance with the provisions of the extension clause, in the deeds, and within the time required thereby, plaintiff or its grantors, tendered to the owners of the lands, the interest on the purchase price of the timber and, at the time of doing so, notified them that, under the right conferred by the deed, the full period of 15 years was desired to cut and remove the timber. That defendant refused to accept the interest so tendered, or to grant the extension of the license for the period named, or for any other time. That the interest so tendered was deposited, subject to the call of the said owners, and that, year by year, and each year, up to and including 1917, the tender of the interest had been made and in all respects kept good. That on September 10, 1917, plaintiff, "by virtue of its right and title to the timber, timber rights, and other property rights, entered upon one of the tracts of land, to wit, the 'Blue House' tract," containing 1,579 acres, for the purpose of clearing out a right of way for the location and construction of a tram road to be used in connection with the cutting and removing of the said timber from the said tract of land, and all the other tracts of land upon which it owned timber, and for the purpose of doing other work preparatory to the cutting and removing the timber from the said tract of land, and all the other tracts of land upon which it owned timber, and for the purpose of doing other work preparatory to the cutting and removing of timber from the said land, and in the proper and legitimate prosecution and exercise of its rights. That defendant, in willful and wanton violation of the complainant's rights, and with intent to hinder and delay, harass, and impede the complainant in the exercise of its said rights, forbade complainant's agents from entering upon the said land for the purposes aforesaid, and took the names of its laborers, agents, or employés, and warned them to keep off said lands, thereby intimidating its laborers, agents, or employés, and interfering with its lawful pursuits and acts. That defendant, on or about the 29th day of September, 1917, instituted an action at law in this court against the complainant herein, alleging and pretending a willful trespass, by complainant, upon the said Blue House tract, by reason of the acts of complainant's servants and employés, and alleging that he had sustained damage thereby to the amount of $500 and that, by reason of complainant's declared intention to cut and carry away the timber from said tract of land, he was damaged to the extent of $50,000. A certified copy of the record in the action at law is attached to and made a part of the bill.

Complainant further alleges that it is informed and believes that defendant intends to continue to molest, hinder, and interfere with the complainant in the exercise of its right to cut and remove said timber from all of the lands referred to and described in its bill, and in the enjoyment of its right to use and enjoy its aforesaid timber rights and other property, and to institute other actions at law, against complainant as soon as complainant re-enters upon said Blue House tract and upon any other of the said tracts of land described in its bill, etc. The bill contains other averments material to be considered on the final hearing, but not relevant to the question presented upon the motion, for a preliminary restraining order. Complainant asks for a decree, enjoining defendant from prosecuting the action at law, now pending, from instituting other actions at law against complainant relating to the timber and other rights of complainant in respect to the said lands, enjoining defendant from interfering with, hindering, delaying, or harassing complainant in the exercise of its rights and property in, or in regard to, the timber on said land, or other rights in, or relating to, said lands, etc.

Defendant, answering the bill, admits that he is the owner of the Blue House and other tracts of land referred to and described therein; that the deeds conveying the standing timber on said lands, and the rights of way and other easements described, were executed as alleged; that such timber, privileges, easements, etc., as were conveyed and granted by said deeds, have by assignment and conveyance vested in complainant; that complainant tendered the amounts alleged, on the days and at the dates alleged, and that complainant, at time of making such tender demanded an extension of 15 years, from the expiration of the period of 10 years named in said deeds, to cut and remove the timber from said lands; that defendant refused to accept the amounts tendered, or to grant the extension of time demanded for cutting and removing such timber, as alleged in the bill.

In regard to the alleged trespass on the Blue House tract, on September 10, 1917, defendant avers that, on said date--

"complainant, through its agents and servants, entered upon one of the tracts of land described in the bill of complaint, to wit, the Blue House tract, and knowingly, willfully, wantonly, maliciously, and with a high hand cut down, carried away, and converted to its own use a large quantity of timber from said land, outside of said permanent rights of way, admitted to be the property of said complainants, and blazed trees and cut paths outside of the said rights of way, and that defendant thereupon, with the intent and for the sole purpose of protecting his property from this unlawful invasion by the complainant, did inquire who the said trespassers were, and at whose direction and by what authority they were so trespassing, and thereupon took their names and forbade them from entering upon any of the lands of the defendant outside of the said rights of way for any purpose whatsoever." Defendant admits that, on the 29th day of September, 1917, he instituted an action at law for trespass against complainant, on account of the entry on said land by complainant's servants and agents, in which he claimed the amount of damages alleged. He denies that he has interfered, or has any intention to interfere with, complainant, in the lawful use of its permanent rights of way. He avers that he is the lawful owner of the land in fee simple, and was and is in the actual exclusive possession of all of the said tracts of land, described in the bill of complaint, excepting the said rights of way, and that his acts, intents, and purposes thereabout have been in good faith and without intent to molest or interfere with the lawful rights of complainant, etc. He further alleges:

"That the additional period of 15 years, claimed by the complainant in said notice, herein set forth, for cutting and removing the timber from any and all of the said tracts of land, was and is unreasonably excessive."

Complainant obtained a rule on defendant requiring him to show cause why a restraining order, or preliminary injunction, should not issue until the hearing. This motion was argued upon defendant's return to the rule, and is now to be disposed of. The arguments and briefs of counsel were chiefly directed to the prayer for an order restraining defendant from prosecuting his action at law pending in this court, and from bringing other actions at law against complainant, respecting its claim to the timber and the exercise of its rights of way and other easements over the lands upon which said timber is standing.

Defendant resists this motion, insisting that complainant has a complete and adequate legal defense, if its contentions be valid, to the action at law now pending. He challenges the power of the court, upon the facts set forth in the bill, to enjoin the prosecution of said action. As other questions arise upon the motion to restrain defendant from bringing other actions, it will be postponed until the question regarding the pending action is disposed of. Reference to the pleadings in the action at law discloses that the plaintiff therein, defendant herein, alleges that he is the owner and in...