Pokegama Sugar Pine Lumber Co. v. Klamath River Lumber & Improvement Co.

• Decision Date: 07 August 1899
• Docket Number: 12,578.
• Citation: 96 F. 34
• Court: U.S. District Court — Northern District of California
• Parties: POKEGAMA SUGAR PINE LUMBER CO. v. KLAMATH RIVER LUMBER & IMPROVEMENT CO.

96 F. 34

POKEGAMA SUGAR PINE LUMBER CO. v. KLAMATH RIVER LUMBER & IMPROVEMENT CO.

No. 12,578.

United States Circuit Court, N.D. California.

August 7, 1899

E. S Pillsbury (F. D. Madison and James F. Farraher, of counsel) for complainant.

F. S Stratton (S. C. Denson, W. W. Kaufman, H. B. Gillis, and James R. Tapscott, of counsel), for respondent.

MORROW Circuit Judge.

This is an action to restrain the respondent from interfering with the complainant in the occupation conduct, and management of its lumbering business at Klamathon, in Siskiyou county, Cal. It is alleged in the bill that complainant is a corporation organized under and by virtue of the laws of the state of California, and that respondent is a corporation organized and existing under the laws of the state of Oregon; that on February 24, 1897, respondent and one Hervey Lindley entered into a written agreement by which respondent agreed to lease to Hervey Lindley or his assigns its entire lumber plant in Siskiyou county, Cal., and Klamath county, Or., for the term of two years from and after March 30, 1897, the consideration for the lease being an annual rent of one dollar per year and a division of the profits, by which respondent corporation was to receive one-third and said Hervey Lindley two-thirds of the total profits. It was further agreed that the said Lindley or his assigns should have the privilege of continuing the lease under the same terms and conditions to March 30, 1902, which privilege was afterwards extended by an additional agreement to March 30, 1904, and the division of the profits changed for this additional period to 45 per cent. for respondent and 55 per cent. for Lindley and his assigns. It is alleged that on April 7, 1897, respondent corporation made, executed, and delivered to Lindley a lease of all the property described in the agreement of February 24, 1897, and in accordance with its terms; that upon the execution of this lease Lindley signed and accepted the same, and entered into possession of the property mentioned therein, and undertook the management and operation of it as a lumbering business; that on the 15th day of September, 1897, Lindley sold, assigned, and transferred to the Pokegama Sugar Pine Lumber Company, the complainant herein, the said instrument in writing, and all his right, title, and interest therein, and thereupon the complainant entered into the possession of said property under and pursuant to the terms of said instrument in writing, and thereafter conducted, operated, and carried on the plant and lumbering business in accordance with the terms of the lease, and kept and performed all the covenants and requirements provided in the lease until the occurrence of the interferences, unlawful acts, and interruptions described in the bill; that the lumbering plant consists of a sawmill and log jack, with booms, lumber yard, tramways from the planing mill to the yard, planing mill etc., on the bank of the Klamath river, at Klamathon, on the line of the California & Oregon Railroad, in the county of Siskiyou; a log slide about 24 miles above the sawmill; that the logs are conveyed to this log slide by a railroad about 9 miles in length, about 2 miles of which was actually built by complainant, and complainant holds the legal title to all of the railroad, together with the rolling stock, including the engine; that the logs hauled over the railroad are cut from lands occupied by complainant, and that respondent has no right, title, or interest in the lands whereon the logs were cut; that between the 7th day of April, 1897, and the . . . day of February, 1898, the said Lindley and complainant cut and caused to be cut 15,000,000 feet of logs, to be sawn at the sawmill during the sawing season of the year 1898; that of this about 4,500,000 feet were in the woods adjacent and contiguous to the railroad, about 6,000,000 feet ready to be loaded upon the cars, about 4,500,000 feet in the river, accessible to the sawmill at Klamathon, and about 1,000,000 feet in the booms connected with the mill; that in cutting and preparing the said logs for the mill complainant had expended more than $50,000, and had expended more than $20,000 in equipping the mill, railroad, and other portions of the plant in readiness for operating the said plant during the sawing season of 1898, which began about the . . . day of February, 1898, and for which complainant had the whole plant in readiness; that on the . . . day of February, 1898, in the nighttime, respondent, acting by and through its president, J. R. Cook, and by W. E. Cook and John S. Cook, as directors and agents of said corporation, violently and by force of arms entered the sawmill, drove the watchman of complainant out of the sawmill, excluded the complainant therefrom by force and violence, and then proceeded to block up the said mill so as to prevent the use thereof, or the taking of logs from the booms or lumber from the yard, by barricading the openings of the mill; that in so forcibly taking and occupying said sawmill respondent employed not only its president, J. R. Cook, and its directors and agents, W. E. Cook and John S. Cook, but also from four to six fighting men, who entered the mill in the nightime, armed with shotguns and rifles, drove out complainant's watchman by threats and violence, and have ever since remained in the mill, armed with shotguns, rifles, and ammunition, and by threats and force and the exhibition of firearms have excluded and still exclude complainant, its agents, representatives, and employes from the mill, and prevented the use and occupation thereof by complainant; that the cause and purpose of the forcible and violent entry by respondent was to compel complainant to abandon the said premises, and because respondent has entered into a contract for the sale of the said property, provided that it can deliver possession to the proposed purchasers, and that respondent has threatened to annoy and harass complainant so as to prevent its operating the plant; that the acts of respondent were not preceded by any peaceable entry upon the said property, or any part thereof, or any attempt to make such entry, or any demand upon complainant for the possession of the same, or the privilege of entering thereon, or any complaint that Lindley or complainant had failed to keep or perform any of the covenants or conditions of the lease dated April 7, 1897; that, on the contrary, on the . . . day of December, 1897, at the request of respondent, complainant furnished to it a written statement showing the result of the operations of Lindley and the complainant to that date; that respondent has never since interposed any objections, but that since that date complainant has continued to cut logs, to make repairs, and to conduct the lumbering business at an outlay of more than $10,000, all of which will be lost to complainant, as well as amounts heretofore expended, and profits which would arise, unless complainant can continue to operate the plant; that, on account of the violent and unlawful acts of respondent, complainant has suffered great and irreparable injury by delay and interference in the prosecution of its lumbering business, and, unless respondent be enjoined and restrained from a continuance of its unlawful acts, complainant will suffer still greater and further irreparable injury and damage, and more particularly in this: that the season for floating logs down Klamath river will expire about June 1, 1898; that, the water in the river being unusually low this season, a shorter season than usual is to be anticipated; that, if the logs cut are not floated this season, they will suffer a deterioration of 50 per cent. in value, and will become a total loss if not used in 1899; that complainant has sufficient logs to run said sawmill at its fullest capacity during the remainder of the year, if not interfered with; that the said sawmill is the only one available to complainant, and the only mill to which the logs can be delivered; that there is no sale and no use for the logs except to be worked at the said mill; that by a failure to work said logs during the season 1898 complainant will lose large profits which it would otherwise obtain therefrom, and which are not capable of accurate computation, and that by the wrongful acts of respondent complainant has been and is subjected to a daily expense of $100 or more, which is a dead loss to complainant; that respondent threatens to continue its interruptions and annoyances aforesaid, and will continue them unless enjoined and restrained by this court; that respondent is insolvent, and unable to respond in damages to complainant on account of the unlawful acts and injuries mentioned, and that complainant has no plain, adequate, and complete remedy at law.

On April 2, 1898, complainant filed an amended complaint, in which it alleges, in addition to the foregoing, that any judgment which might be recovered against respondent in an action at law would be wholly worthless, and could not be satisfied in whole or in part; that practically all the property of respondent situated within the state of California is in the county of Siskiyou, the full cash value of which, as stated by respondent to the assessor of that county, and as assessed by him, is the sum of $23,000; that this comprises the whole of the property of respondent except a tract of timber land in the state of Oregon, of the value of not more than $10,000, which tract of land is mortgaged, and a small tract of land in Minnesota, mortgaged at more than its value; that respondent, for the purpose of placing all of its property beyond the reach of any execution which might be levied against it, mortgaged, on or about the . . . day of February, 1898, all the...