Caples v. Young

• Decision Date: 30 June 1921
• Docket Number: 2 Div. 727
• Parties: CAPLES et al. v. YOUNG et al.
• Court: Alabama Supreme Court

89 So. 460

206 Ala. 282

CAPLES et al. v. YOUNG et al.

2 Div. 727

Supreme Court of Alabama

June 30, 1921

Appeal from Circuit Court, Dallas County; S.F. Hobbs, Judge.

Bill by Anna Young and another against J.D. Caples and others, to enjoin trespass to land and growing crops, by building a road thereon. From a decree granting relief, respondents appeal. Affirmed.

J.L Bishop, of Selma, and Brown & Ward, of Tuscaloosa, for appellants.

Craig &amp Craig, of Selma, for appellees.

GARDNER J.

Appellees conveyed to appellants by deed duly executed all the merchantable timber of specified dimensions with certain exceptions not necessary to mention situated upon the lands particularly described therein and occupied by the appellees as a home. Definite time was provided in the contract for the cutting and removal of the timber, at the expiration of which it was provided that the timber should revert and become the absolute property of the appellees. The right was also granted to the purchasers to build suitable houses and sheds on the land necessary to cover and maintain all machinery for the manufacturing of said timber into lumber, and for drying and planing the same, with the further stipulation that these buildings may be removed within a reasonable time after the expiration of the contract. The right of ingress and egress over and upon the land for the purpose of cutting timber and removing the same, as well as lumber manufactured by the purchasers, was also granted, but with the express limitation that there should be no injury to the growing crop or crops of the seller.

This deed was executed in May, 1918, and in October, 1919 appellees filed this bill against the appellants, setting forth the foregoing facts, attaching a copy of the deed as an exhibit to the bill, and alleging that the respondents have laid out, and are using or about to use for removing the timber on said land, as well as other timber not on said land, a road over and upon the growing crops of clover and hay belonging to complainants for a distance of over a quarter of a mile; and that the use of such road will work irreparable damage, and that the injury is of such a nature that it cannot be fully compensated in damages or measured by any pecuniary standard, and is in violation of the restriction in said contract or deed. The bill further avers that the respondents intend to convey over this road timber purchased from other parties and on lands other than those of complainants, and that no such right was given by said deed. Under the original terms of the contract a period of five years for the removal of the timber was prescribed. The bill prays that the respondents be enjoined from such trespass upon the growing crops of the complainants, and from hauling timber or logs over the land which was cut or removed from lands other than those described in the deed.

There was demurrer to the bill for want of equity, and answer filed by the respondents denying that they had laid out and were using or about to use a road for the removal of timber, which would trespass upon any growing crops of clover and hay, and denying the other material averments, particularly in reference to that part of the bill which restricts the right of ingress and egress to timber cut upon the land described in the deed. Motion was made to dissolve the injunction for want of equity in the bill, and upon denial of the answer numerous affidavits were offered by the respective parties but no action was had upon the motion to dissolve the temporary injunction until the rendition of the final decree. Therefore, section 4535, Code 1907, and the case of Nelson v. Hammonds, 173 Ala. 14, 55 So. 301, construing the same, are here without...