Butts v. Fox

• Decision Date: 16 May 1904
• Citation: 81 S.W. 493,107 Mo.App. 370
• Parties: H. C. BUTTS, Appellant, v. GEORGE FOX, Respondent
• Court: Kansas Court of Appeals

81 S.W. 493

107 Mo.App. 370

H. C. BUTTS, Appellant, v. GEORGE FOX, Respondent

Court of Appeals of Missouri, Kansas City

May 16, 1904

Appeal from Livingston Circuit Court.--Hon. J. W. Alexander, Judge.

Judgment affirmed.

Joseph Barton and Sheetz & Sons for appellant.

(1) Injunction was the proper remedy. R. S. 1899, sec. 3649, p 899. (2) The court erred in excluding the evidence of defendant of the amount of timber he cut off the premises and sold. (3) The tenant was entitled to dead and down wood only under the common law. Williams on Real Property (17 In. Ed.) p. 149. (4) The tenant had no right to cut timber for sale, except by agreement with his landlord, and the burden of proof is on the tenant to show the extent of his right. He was guilty of committing waste when he cut timber and sold it. Davis v. Clark, 40 Mo.App. 515; Proffitt v. Henderson, 29 Mo. 325; Kerr on Injunction (2 Ed.), p. 64.

Commodore Smith and Scott J. Miller for respondent.

(1) The evidence fails to sustain the petition, in fact or the law. (2) The tenant was entitled to dead and down wood under the common law. That is all true but in our case he had a contract to have a little green wood, too. (3) The appellant's counsel failed to appreciate the fact that their own witness, Mr. Wilson, testified that he gave the respondent in this case the right to cut the timber and do as he pleased with it.

OPINION

ELLISON, J.

The plaintiff seeks to enjoin defendant from committing waste on a certain tract (perhaps one hundred acres) of farm land. The trial court dismissed the bill.

It appears that the defendant rented the land by the year of Messrs. Hale and Wilson, and that during his tenancy they sold to this plaintiff. The land was not all in cultivation on some of it there was timber. Wilson authorized defendant to cut and do as he pleased with the timber, but he was to take it clean and pile the brush. Plaintiff seems to have accepted defendant as his tenant along with the contract as to timber, save (as he contends) defendant was to let him have what timber he should want. The position taken by plaintiff is that defendant was cutting the timber off in places, wherever he could find what would be suitable for sale and was hauling it off the premises, and that he thereby was guilty of committing waste within the case of Davis v. Clark, 40 Mo.App. 515. Defendant makes no question on the law and justifies the judgment rendered on the ground that no case was made calling for the extraordinary remedy sought. In that position we agree. In our opinion the court was justified in refusing an injunction for several...