Gresham v. Atlantic Coast Lumber Corp.

• Decision Date: 24 October 1913
• Citation: 79 S.E. 799,96 S.C. 53
• Parties: GRESHAM v. ATLANTIC COAST LUMBER CORPORATION.
• Court: South Carolina Supreme Court

79 S.E. 799

96 S.C. 53

GRESHAM v. ATLANTIC COAST LUMBER CORPORATION.

Supreme Court of South Carolina

October 24, 1913

Appeal from Common Pleas Circuit Court of Marion County; T. H Spain, Judge.

Action by Annie Law Gresham against the Atlantic Coast Lumber Corporation. From an order dissolving a temporary injunction plaintiff appeals. Reversed and remanded.

The pleadings and exceptions are as follows:

Complaint.

"The complaint of the above-named plaintiff respectfully shows to the court:

"First. That the plaintiff is a resident of the county of Marion said state.

"Second. That the defendant, Atlantic Coast Lumber Corporation, is a corporation duly chartered and organized under the laws of the state of South Carolina, with its principal place of business in the city of Georgetown, in the county of Georgetown, said state.

"Third. That heretofore, to wit, on the 16th day of December, A. D. 1898, plaintiff's predecessor in interest, C. C. Law, executed and delivered to one R. L. Montague a certain instrument of writing, styled and known as a 'deed and contract' and commonly called a 'timber deed,' bearing date on said date, whereby the said C. C. Law purported to sell and convey unto the said R. L. Montague all the timber of every kind and description to 12 inches stump diameter and upwards, 12 inches from the ground at the time of cutting, then standing and being on that certain tract, piece, or parcel of land known as the Manning tract, Smith and Herring tract, Matheson tract, and the Godbold tract. The said lands are bounded and described as follows, to wit: Manning tract: North by T. G. Davis' lands, east by estate D. Leggette, south by C. C. Law, west by estate of Iseman. Smith and Herring tract: North by C. C. Law, east by the lands of D. C. Law, south by J. D. Williams, west by C. C. Law. Matheson tract: North by C. C. Law, J. D. Williams, and estate of D. Leggette, east by estate of D. Leggette, S.W. Altman, and S. P. Shaw, south by estate of D. Leggette, D. J. Atkinson, and S.W. Altman, west by C. C. Law and I. D. Williams. Godbold tract: North by Ebby Atkinson and J. W. Holliday, east by Ebby Atkinson and Jas. Jones, south by J. D. Dozier, west by Great Pee Dee river. Containing 3,119 acres, more or less, situated in the township of Brittons Neck, county of Marion, and state of South Carolina, together with certain timber rights, rights of way, privileges, and easements therein more specifically set forth, all of which will more fully appear by reference to said deed, a copy of which is hereto attached and made a part of this complaint and to which all necessary reference is craved.

"Fourth. That the plaintiff is now, and has been for a number of years, seised in fee and possessed of said described lands.

"Fifth. On information and belief that, by sundry mesne conveyances, all the right, title, and interest of said grantee, R. L. Montague, in and to the said timber, timber rights, rights of way, privileges, and easements mentioned and described in the said deed were acquired and are now held by defendant, Atlantic Coast Lumber Corporation, which, as this plaintiff is informed and believes, claims and asserts its rights to hold the same under and by virtue of a deed of conveyance executed and delivered to it.

"Sixth. That on or about the 16th day of March, A. D. 1912, the defendant herein, against the will and without the consent of the plaintiff, and after notice and warning from her, forbidding the same, and in utter disregard of the rights of plaintiff, willfully and wantonly entered upon the aforesaid lands of the plaintiff with a force of men and teams and prepared and intended to operate and lay out roads and tramroads upon and over the said lands and began to cut, fell, and remove the said timber, both standing and fallen, therefrom; and that, as plaintiff is informed and believes, the said defendant is still continuing and threatens and intends to continue its said logging operations upon the said lands of the plaintiff. That the said defendant, over the protest of this plaintiff, and in utter disregard of plaintiff's rights, as hereinbefore alleged, has already willfully and wantonly cut and removed, or is about to remove, large quantities of timber from said lands to plaintiff's damage $2,000.

"Seventh. That, by a proper construction of said deed and contract, it must be held to have imposed upon the said grantee, his heirs or assigns, the duty and obligation to begin the cutting and removal of the timber therein described within a reasonable time after the date thereof and continue the same without cessation until the said timber should have been cut and removed. That, although a period of more than 13 years has elapsed and expired, neither the said grantee nor his heirs and assigns nor the defendant herein commenced the cutting and removing of the said timber until the date above mentioned. And the plaintiff alleges that a reasonable time for said cutting and removing has long since expired and had expired long before the entry of defendants aforesaid; and the plaintiff alleges that neither the said defendant, Atlantic Coast Lumber Corporation, nor its predecessors or grantors, nor any one for it or them, have paid or tendered to plaintiff any interest on the said original purchase price.

"Eighth. That the value of the said timber constitutes by far the larger part of the value of the plaintiff's said land, and the cutting and the removal thereof would involve irreparable injury upon the plaintiff by wasting and devastating the freehold. That the operations of the said defendant thereon, if continued, would constitute a series of successive and repeated entries upon the land of the plaintiff and would entail upon the plaintiff loss and damage for which she could not obtain adequate redress at law, and same would involve a multiplicity of vexatious, harassing and expensive suits, and the plaintiff can therefore obtain adequate remedy for the same only in a court of equity.

"Ninth. That inter alia the said contract reads as follows: 'It is agreed that the time limit of this conveyance above set forth shall be 10 years from the time the second party begins cutting and removing the said timber from the lands above described, but the first party agrees that the said time limit may be extended from year to year thereafter upon the payment by the said second party, his heirs, executors, administrators, or assigns, of interest on the original purchase price at the rate of 6 per cent. per annum'--and this plaintiff alleges that, by a proper construction of said deed and contract, it must be held to have imposed upon the said grantee, his heirs and assigns, the duty and obligation to begin the cutting and removal of the timber therein described within a reasonable time after the date thereof; and the plaintiff alleges that such reasonable time had long since expired prior to any entry by defendants, or by the said grantee, his heirs or assigns, including the defendant herein, and that the said grantee, his heirs and assigns, including the defendant herein, have forfeited and lost all right, title, and interest in and to the said timber, all the timber rights, rights of ways, privileges, and easements, and the same have, by operation of law, reverted and revested in plaintiff, and that the entry upon the said lands by the said defendant should be permitted to continue their logging operations thereon, the same would amount to a series of repeated vexatious and harassing trespasses.

"Wherefore plaintiff demands judgment:

"First. That the said deed be adjudged to have required the grantee and his heirs and assigns, including the defendant, to commence the cutting and removal of the said timber within a reasonable time, and that said time may be decreed to have elapsed and expired prior to entry, and that it may be adjudged that the defendant has forfeited and lost all rights under the said deed by reason of the expiration of such reasonable time, and that the said defendant shall deliver up the same to be canceled.

"Second. That the defendant, its officers, agents, servants, and employés, and all persons claiming or acting for, through, or under it may be perpetually enjoined and restrained from entering upon the said lands of the plaintiff for the purpose of and from cutting or removing any of the timber, either standing or fallen, and from cutting or opening or laying out roadways or cartways thereon, or causing or suffering to be done or committed any other act or things looking to the exercise of any rights claimed under the said deed and contract.

"Third. That in the meantime, and pending the final determination of this action, the said defendant, its officers, agents, servants, and employés, and all other persons acting or claiming by or under it, may be enjoined and restrained from doing or committing, or causing or suffering to be done or committed, any of the acts or things aforesaid.

"Fourth. That plaintiff herein have judgment against said defendant for the sum of $3,000 damages, and that said defendant be required to account for all timber cut by it.

"Fifth. For the costs and disbursements of this action and for such other and further relief as to this honorable court may seem just and equitable."

Answer.

"The defendant, Atlantic Coast Lumber Corporation, not waiving, but specifically reserving, its right to move to strike from the complaint herein certain irrelevant and redundant matter and to move to have such complaint made more definite and certain, and to answer over in case such motions shall be granted, answering the complaint:

"(1) Admits the truth of the allegations contained in paragraphs first, second, third, and fifth thereof.

"(2) Denies the

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