Twin States Land & Timber Co. v. Chapman, 1998-CA-01191-COA.

• Decision Date: 16 November 1999
• Docket Number: No. 1998-CA-01191-COA.,1998-CA-01191-COA.
• Citation: 750 So.2d 567
• Parties: TWIN STATES LAND & TIMBER COMPANY, INC., Appellant, v. Glen CHAPMAN and John Alex Thornhill, Appellees. Glen Chapman, Appellant, v. John Alex Thornhill, Appellees.
• Court: Mississippi Court of Appeals

750 So.2d 567

TWIN STATES LAND & TIMBER COMPANY, INC., Appellant, v. Glen CHAPMAN and John Alex Thornhill, Appellees.

Glen Chapman, Appellant, v. John Alex Thornhill, Appellees.

No. 1998-CA-01191-COA.

Court of Appeals of Mississippi.

November 16, 1999.

Rehearing Denied January 25, 2000.

Walter T. Rogers, Meridian, Attorney for Appellant.

John E. Howell, Henry Palmer, Meridian, Attorneys for Appellees.

BEFORE McMILLIN, C.J., MOORE, AND THOMAS, JJ.

McMILLIN, C.J., for the Court:

¶ 1. This case involves a dispute between the owner of a remainder interest in a tract of real property and the life tenant. The dispute is over the life tenant's authority to cut and remove timber from the tract without the consent of the remainderman. The remainderman also sought to impose liability against the timber company harvesting the timber under contract with the life tenant. The underlying issue on which the case turns is whether a life tenant (and those acting under authority of the life tenant) may be compelled to respond to the remainderman for those statutory penalties set out in Section 95-5-10 of the Mississippi Code. We conclude that such an action may not be maintained, but that a remainderman's sole remedy in such a situation is a common law action for waste. Because the judgment in this case was improperly calculated under the highly penal statute founded on principles of trespass rather than under the law of waste, we reverse and remand.

¶ 2. A second issue raised in the appeal involves the enforceability of an indemnity clause in the contract between the life tenant and the timber company which the chancellor found unenforceable. We reverse and remand as to that issue, also.

I.

Facts

¶ 3. In 1988, John Alex Thornhill conveyed to his cousin, Glen Chapman, a life estate in seventy-six acres of unimproved land in Clarke County. At the time of the conveyance, some part of the land had been planted by Thornhill in pine, some part of it was open land, and approximately forty acres of the tract consisted of a naturally-occurring stand of mixed pine and hardwood.

¶ 4. In 1996, after giving notice to Thornhill of his intentions but without having obtained Thornhill's consent, Chapman entered into a timber cutting contract with Twin States Land & Timber Company, Inc. The contract purported to give Twin States the right to harvest the merchantable hardwood timber from the forty acre stand of mixed hardwood and pine. Twin States had cut approximately four acres of the tract when the company halted work on demand of Thornhill.

¶ 5. This litigation was actually commenced by Chapman, who sued Twin States for the purchase price of the timber cut and removed prior to the cessation of the harvesting operation. Thornhill was joined as a necessary party on motion of Twin States. Thornhill then filed pleadings to assert a claim against Chapman and Twin States for wrongfully harvesting the timber. Thornhill confined his request for relief to a claim for the statutory damages authorized by Section 95-5-10 of the Mississippi Code. He later filed an amended complaint as to Chapman only, alleging that the cutting constituted waste and seeking to enjoin Chapman from any further activities of this nature.

¶ 6. At trial, Chapman based his right to harvest the timber without the consent of the remainderman, Thornhill, on several theories. They included (a) a claim that the timber proceeds would be spent toward his normal living expenses, a practice permitted to the life tenant under the doctrine of estovers, (b) a claim that the tract was in operation as a timber farm at the time his tenancy was created, thereby permitting him to continue to so operate the tract and receive the periodic income thus produced, and (c) an alternative claim that the harvesting of the hardwood from this particular tract was nothing more than an act of good husbandry in managing the property because the removal of these older, slow growing trees permitted more rapid growth of the remaining pine as well as the natural regeneration of the tract in additional faster-growing and more valuable pine trees.

¶ 7. Uncontradicted evidence indicated that, under the timber harvesting contract, Chapman would have received $4,648.42 for the timber cut and removed from the property, and that Twin States received the gross sum of $12,089.00 for the timber from the mill that purchased the wood. There was further evidence that Twin States had cut one or two loads of wood having a value in the range of $1,000 that were left lying on the ground after Thornhill's protest of the cutting. This timber had begun to rot and was of little or no value at the time of trial.

¶ 8. The chancellor concluded that Thornhill had made a case for liability under principles of common law waste against Chapman and Twin States but that Thornhill had not properly proven any damages under this theory. However, the chancellor further held that Thornhill had also proven his entitlement to the statutory damages set out in Section 95-5-10 of the Mississippi Code against both Chapman and Twin States, including the added penalties associated with wilful conduct in the cutting. She, therefore, calculated Thornhill's total claim under the statute to be $55,083 and entered a joint and several judgment against Chapman and Twin States in that amount.

¶ 9. Twin States, in addition to denying any liability to Thornhill, alternatively sought to enforce an indemnity clause contained in its contract with Chapman to compel Chapman, in the event of an unfavorable result in Thornhill's claim, to satisfy Twin States's obligation under the judgment as well as its defense costs. The chancellor refused to enforce the indemnity provisions of the timber cutting contract, finding the provision to be unconscionable under the facts of this case.

¶ 10. Twin States has appealed the judgment entered against it in favor of Thornhill. Additionally, and alternatively, Twin States has appealed the chancellor's decision not to compel Chapman to indemnify Twin States as to Thornhill's claim. Chapman has also appealed the judgment entered against him in favor of Thornhill, claiming that the facts do not warrant invoking the statutory damage provisions.

¶ 11. We reverse the judgment as entered and remand for such further proceedings as are appropriate in light of this opinion.

II.

Discussion

¶ 12. The first question before the Court in this appeal is whether a remainderman may recover statutory damages and penalties under Section 95-5-10 of the Mississippi Code from the life tenant (or those acting under authority of the life tenant) for alleged wrongful harvesting of timber. We determine that a remainderman may not maintain such an action, but that his sole remedy is the common law action of waste.

¶ 13. The statute in question, Section 95-5-10 of the Mississippi Code, imposes liability on "any person [who] shall cut down... or take away any tree without the consent of the owner of such tree...." Miss.Code Ann. § 95-5-10(1) (Rev.1994) (emphasis supplied). The statute provides damages of double the value of the timber together with certain costs associated with reforestation of the land. Miss.Code Ann. § 95-5-10(1) (Rev.1994). Another provision of the statute provides that, if the cutting is wilfully done, or accomplished in reckless disregard for the rights of the owner of the trees, an additional amount of up to $55.00 per tree may be assessed as the owner's damage. Miss.Code Ann. § 95-5-10(2) (Rev.1994).

¶ 14. The Mississippi Supreme Court has said that an earlier version of the statute was highly penal in nature and, therefore, subject to strict construction in its application. Lochridge v. Hannon, 236 Miss. 687, 690, 112 So.2d 234, 236 (1959). We are satisfied that the present version of the statute is also highly penal and, therefore, understand our obligation to strictly interpret the statute's provisions in keeping with Lochridge.

¶ 15. The supreme court, because of the penal aspects of the statute, has been reluctant to apply it except in the clearest of cases. By way of example of the strict construction put on the statute, in Bollinger-Franklin Lumber Co. v. Tullos, the supreme court refused to apply the statute when one of several co-tenants was not a party to litigation begun by all remaining co-tenants to enforce the statute and no effort was made to prove that the harvesting of the timber was without the permission of this absent co-tenant. Bollinger-Franklin Lumber Co. v. Tullos, 124 Miss. 855, 859, 87 So. 486, 486 (1921). The court held that an essential prerequisite to maintaining such a suit was to show that "the cutting was done without the consent of the owners; therefore, if any one of the tenants in common consented to the cutting, then such consent would bar his recovery [under the statute] and also defeat all of the others." Id. at 859, 87 So. 486, 87 So.2d at 486. Thus, the court appeared to narrowly interpret the term "owner" to mean, in the case of divided ownership, all those persons enjoying any ownership rights in the property.

¶ 16. In the case now before us, there is no dispute that there was divided ownership of the fee title to the property in question, with both Chapman and Thornhill having certain limited ownership rights. It must also be conceded that Chapman, the life tenant, consented to the cutting of the timber. The question, then, becomes whether some distinction may be drawn between Chapman's status as a life tenant and the missing co-tenant in Bollinger-Franklin Lumber Co. v. Tullos that would require a different result in this case. We conclude that there is no such distinction to be drawn. In fact, insofar as standing timber is concerned, it appears that a life tenant enjoys a higher degree of ownership than does a co-tenant, thereby suggesting in even stronger terms the inapplicability of the statute.

¶ 17. Though a life tenant occupies a different ownership interest...