Gulf Red Cedar Co. v. Crenshaw

• Decision Date: 21 May 1914
• Docket Number: 45
• Parties: GULF RED CEDAR CO. v. CRENSHAW et al.
• Court: Alabama Supreme Court

65 So. 1010

188 Ala. 606

GULF RED CEDAR CO. v. CRENSHAW et al.

No. 45

Supreme Court of Alabama

May 21, 1914

Appeal from Chancery Court, Butler County; L.D. Gardner, Chancellor.

Action by Louisa Crenshaw and others against the Gulf Red Cedar Company. Decree for plaintiffs, and defendant appeals. Reversed and rendered.

Ingraham P.J., dissenting.

Powell & Hamilton, of Greenville, and Addison L. Holladay, of Richmond, Va., for appellant.

J.M Chilton, of Montgomery, and L.M. Lane, of Greenville, for appellees.

MAYFIELD J.

This is the fifth appeal in this case. See reports of former appeals 131 Ala. 117, 30 So. 466, 90 Am.St.Rep. 22; 138 Ala. 134, 35 So. 50; 148 Ala. 343, 42 So. 564; 169 Ala. 606, 53 So. 812. The law and the equities governing this case, save as to a final accounting, were settled on former appeals. The parties are tenants in common of 640 acres of land, comprising the south halves of sections 7 and 8, township 11, range 13, in Butler county. The tract was therefore two miles in length, from east to west, and a half mile in breadth, from north to south. The suit is by the appellees against the appellant, for an accounting as between tenants in common. It is alleged, and the proof shows, that the respondent, appellant here, owned a one-fifth interest in this land, and that complainants (appellees) own the other four-fifths interest. It is alleged, and the proof shows, that the respondent has cut and removed large quantities of cedar timber from the lands in question, and has failed to account to the complainants for their interest therein, thus converting to its sole use the interest of complainants. This appeal is from a final decree adjudging that appellant pay to appellees $29,660.96, such amount being the ascertained value of complainants' interest in the cedar timber used and converted by the respondent.

The sole contention or dispute between the parties on this appeal is the amount and value of the cedar timber removed from the lands in question; all other questions, except such as we shall hereafter refer to, have been either settled by agreement or determined on former appeals.

The decree ordering the reference was in part as follows:

"It is further ordered, adjudged, and decreed that this cause be and is hereby referred to the register of this court, who will ascertain and report:

"(a) The amount and value of all cedar timber that was cut and removed by the defendant, the Gulf Red Cedar Company, through its contractors, agents, servants, or employés from the said S. 1/2 of section 7 and the S. 1/2 of section 8, of township 11 and range 13, in Butler county, Ala., between the 18th day of December, 1888, and the 18th day of December, 1898.

"(b) The amount and value of all cedar timber that was cut and removed from said lands by said defendant, the Gulf Red Cedar Company, through its contractors, agents, servants, or employés between the 18th day of December, 1898, and the 6th day of August, 1900.

"(c) In ascertaining the value the register will estimate the value of said cedar timber after the same was cut down, and not as standing timber, but shall make no allowance for the expense of cutting the same.

"(d) The register will ascertain and report the amount due and owing by the defendant, the Gulf Red Cedar Company, as of the date of the reference to each of the complainants for their interests, respectively, in the value of said timber, each of the complainants, except Louisa Crenshaw and Lillian Wagner, being entitled to one-fifth of the ascertained value of all of the timber so cut and removed by the said defendant from said lands from the 18th day of December, 1888, to the 6th day of August, 1900, and the said Louisa Crenshaw and Lillian Wagner being respectively entitled to a one-fifth interest in the value of all the timber so cut and removed by said defendant from said lands from the 18th day of December, 1898, to the 6th day of August, 1900."

The register, in response to this decree, reported as follows:

"The register reports that a great deal of evidence was introduced as to the amount and value of the cedar timber cut by the Gulf Red Cedar Company from said lands, all of which he has considered, but from which he finds it difficult to form an accurate estimate of the quantity of cedar timber cut by the defendant from the T.C. Crenshaw lands; that it appears, however, from the evidence, that on the 21st day of January, 1898, G.J. Peagler, Thomas W. Peagler, and Ellen D. Peagler sold and conveyed to the Gulf Red Cedar Company the cedar timber on a tract of land in the vicinity of the said T.C. Crenshaw lands for the sum of $25,000, from which land the defendant admits that it obtained at least 19,000,000 pounds of cedar timber. After a consideration of all the evidence, the register finds that he can more nearly estimate the amount and value of the cedar timber cut by the defendant, Gulf Red Cedar Company, from said lands described in the decree by a comparison between the amount and value of said timber so cut from the T.C. Crenshaw lands with the amount and value of said timber sold by said Peaglers to the defendant company. After making allowances for the cedar timber cut from the T.C. Crenshaw lands before the purchase of the same by the Gulf Red Cedar Company, and confining himself to the cedar timber cut from said Crenshaw lands by the defendant between the dates aforesaid, the register reports that there was at least as much cedar timber cut and removed by the defendant, Gulf Red Cedar Company, from the Crenshaw lands as was obtained, as aforesaid, by defendant from the said Peagler lands.

"The register further reports that, taking the proven value of said Peagler timber at the sum of $25,000, he finds that the Crenshaw timber was inferior in quality to said Peagler timber to the extent of at least one-fifth. He, therefore, finds and reports the value of the Crenshaw timber to have been as of the date of the filing of the bill in this cause, on the 6th day of August, 1900, to be the sum of $20,000, and, deducting one-fifth share of said amount to which the defendant company is entitled under the decree, the register reports as the amount due the complainants of said sum of $20,000, the sum of $15,000 as of the date of the filing of said bill."

This report was confirmed by decree of the chancellor. The bone of contention is the correctness of the register's report as to the amount of cedar timber taken from the lands by respondent.

On appeal from a decree of the chancellor, overruling exceptions to the report of the register in this case, on matters of account dependent upon the conclusions drawn by the register from the evidence produced before him, all reasonable presumptions are indulged to support his rulings, and they will not be disturbed, unless shown to be clearly wrong. Where the register, in his investigation, has the witnesses present before him, he has advantages, in weighing the testimony which neither the chancellor nor this court can enjoy; and his findings on controverted facts should not be disturbed unless based on erroneous conclusions of law, or on illegal evidence, or unless it is manifest that he erred in weighing the testimony.

Again, it has been said that where the evidence is conflicting the finding of the register has the same weight and effect as the finding of a jury, and will not be disturbed on appeal unless palpably erroneous, or unless it would warrant a judge in setting aside a verdict under similar circumstances. Winter v. Banks, 72 Ala. 409; Lehman v. Levy, 69 Ala. 48; Munden v. Bailey, 70 Ala. 63; McKenzie v. Matthews, 153 Ala. 437, 44 So. 958; Denman v. Payne, 152 Ala. 342, 44 So. 635; O'Kelley v. Clark, 63 So. 948.

On account of this rule, the great mass of evidence has been carefully studied and analyzed; and we have reached the conclusion that the finding of the register as to the amount of cedar timber cut from the T.C. Crenshaw lands was incorrect.

This being a bill for an accounting between tenants in common, it is not a case in which the damages should be assessed as if the parties were trespassers and wholly without right in converting the property. The law in such cases was thus quoted in Sanders v. Robertson, 57 Ala. 471:

"If a tenant in common receives more than his share of the profits, by an excessive use of the property, as by wearing out the land, or by an improper use of it, as by cutting down the timber and selling it, he cannot be treated as a tort-feasor, but the remedy of the cotenant is by an action of account, or a bill in equity for an account."

Neither do we think this a case in which harsh or excessive damages should be inflicted, because of the commingling of goods, or for the failure to disclose facts necessary to ascertain the real or true damages. We cannot agree with appellees that appellant has willfully or negligently withheld or concealed facts necessary to ascertain the damages. In fact the respondent has produced the only evidence from which the amount of the timber cut and removed can be estimated or ascertained with any degree of certainty. Moreover, it appears to us that the...