Chicago Mill & Lumber Co. v. Osceola Land Co.

• Decision Date: 07 March 1910
• Citation: 126 S.W. 380,94 Ark. 183
• Parties: CHICAGO MILL & LUMBER COMPANY v. OSCEOLA LAND COMPANY
• Court: Arkansas Supreme Court

126 S.W. 380

94 Ark. 183

CHICAGO MILL & LUMBER COMPANY v. OSCEOLA LAND COMPANY

Supreme Court of Arkansas

March 7, 1910

Appeal from Mississippi Chancery Court, Chickasawba District; Edward D. Robertson, Chancellor; modified and affirmed.

Decree affirmed.

W. J Lamb, for appellant.

1. The rights of the parties were settled on former appeal, by the opinion delivered May 13, 1907. 84 Ark. 14. The only power of the chancery court was to enter a decree as directed by this court. 74 Ark. 81-87; 82 Ark. 1; 85 Ark. 414.

2. The court erred in sustaining the report of the master, which was unjust and unconscionable, placed an excessive valuation on the timber cut, and was based upon testimony much of which was mere hearsay and much of which was immaterial, irrelevant and incompetent. The master erred also in refusing to accept the positive record as to the amount of timber cut submitted to him by the appellant.

3. The fee allowed the master for his services is grossly excessive. Kirby's Dig., § 3497.

Murphy Coleman & Lewis and J. T. Coston, for appellee.

1. When the action to quiet title was commenced, the timber in question was then standing upon and was a part of the real estate. Its removal by appellant, pending the litigation, did not oust the jurisdiction of the court to the extent of the timber. When this court reversed the decree of the lower court and remanded the case with directions to render a decree quieting the title of appellee to the land, and for further proceedings "not inconsistent with the opinion," the lower court not only had the right, but it was its plain duty, to make such decree effectual by forcing appellant to make restitution to appellee for the stolen timber, or account for its value. The case relied upon by appellant is not in point. 2 Black on Judgments, § 683; 3 Cyc. 460, 462; 92 S.W. 770; 23 Wall. 465; 16 Ark. 181; 98 S.W. 969; 36 Ark. 22, 26-7; 2 S.W. 503; 83 S.W. 77-8; 26 S.E 439; 62 P. 12; 139 U.S. 220; 76 Am. Dec. 464-5; 50 Id. 119; 30 N.E. 964.

2. The master properly refused to accept the record submitted by appellant. It was made pending the litigation, and the witness who introduced it had no knowledge concerning it, and could not testify to its accuracy. The party who made the record was not produced as a witness, and his absence was not accounted for. 1 Greenleaf, Ev. (16 ed.), § 120a; 57 Ark. 415-16; 2 Wigmore, Ev., §§ 1521, 1523, 1525 1526, 1527. The values fixed by the master are less than the average values fixed by the witnesses. Moreover, no exceptions were filed to the finding of the master as to the values except as to the value of cottonwood, oak, ash and cypress, and no exceptions were taken on the ground that the master was influenced by incompetent evidence. 93 S.W. 61. The master's report is conclusive. 122 S.W. 661; Kirby's Dig., § 6340; 22 S.E. 792; 22 A. 1111; 23 P. 671; 17 N.E. 752; 27 N.E. 184; 37 Vt. 486; 9 Ala. 179; 108 S.W. 513.

OPINION

BATTLE, J.

On the 4th day of August, 1904, the Osceola Land Company instituted a suit against the Chicago Mill & Lumber Company to quiet its title to certain lands. The defendant answered, and filed a cross bill to quiet its title to the same lands against the plaintiff. The Osceola Land Company answered the cross bill and evidence was taken on the issues presented. The chancery court rendered a decree, dismissing the complaint of the plaintiff, and quieting the title of the Chicago Mill & Lumber Company. Plaintiff appealed, and this court reversed the decree, and remanded the cause, "with an order that a decree be entered cancelling the tax deed under which the defendant holds and quieting the title of the plaintiff." Osceola Land Company v. Chicago Mill & Lumber Company, 84 Ark. 1, 103 S.W. 609.

After the cause was remanded the Osceola Land Company filed a supplemental complaint in the chancery court, and therein alleged that since the suit was commenced the defendant had entered upon the land and cut and removed therefrom timber of a certain description, of the value at the time and place it was cut of the sum of $ 22,888.95, and asked for judgment for that sum with interest. The defendant answered and admitted that, since the original suit was commenced, it had entered upon the land and cut and removed timber therefrom, "but denied that it cut the amounts and kind of timber specified in the complaint," and the value as alleged in the complaint; and, further answering, said:

"Defendant states that since the institution of this suit, but prior to the date of the rendition of the original decree herein, towit: on the 12th day of October, 1905, it has cut and removed from said land timber of the value of $ 5,000, but alleges that this court has no jurisdiction to render a decree for the value of said timber or to adjudicate the rights of the parties thereto, and states further that this court has no authority in this cause to render a decree except that directed by the mandate of the Supreme Court and in conformity to the opinion.

"And further states that the decree of this court heretofore rendered in this cause, towit, on the 12th day of October, 1905, of record in chancery record 1, page 178, is between the same parties hereto and involves the property in question herein as described in plaintiff's supplemental complaint, and said decree and the decree of the Supreme Court on appeal therefrom are res judicata as to the relief prayed herein by plaintiffs.

"Wherefore, having fully answered, defendant prays that it be discharged with costs and all other proper relief."

At the next term of the court, after the filing of the supplemental complaint and answer, the chancellor appointed Clyde Robinson special master, with directions to ascertain the amount of timber cut by the Chicago Mill & Lumber Company on the land in controversy and the value thereof and the amount of taxes paid by the Chicago Mill & Lumber Company, and to state an account between the parties. The master, after taking the testimony of witnesses, reported that a fair and equitable price for the timber cut is as follows: "Six dollars per thousand for cottonwood, cypress, oak and ash; $ 1.50 per thousand for elm, gum, sycamore and maple; and 10 cents each for cypress ties, which, according to the total amount of timber cut, would amount to $ 12,451.87, which, with six per cent. per annum interest thereon from March 1, 1905, to March 1, 1909, amounts to $ 15,440.32. The defendant excepted to the report for the following reasons:

"That in the evidence, as submitted in said cause, the exact number of logs and the exact number of feet in said logs of various kinds and quality removed from the land in controversy is shown by an accurate record and statement filed therein, while the evidence of the plaintiff as to the amount of timber so cut was uncertain, indefinite and admittedly unreliable, but the master in his report has accepted the vague and indefinite estimate of plaintiff and has ignored the exact statement and finding by defendant, and has unjustly thereby charged defendant with a greater amount of timber than it removed from the said land.

"Defendant also charges that the master has fixed the value of ash, cypress, cottonwood and oak logs removed from the land in controversy by defendant at a price greater than is warranted by the evidence, and more than the market value of said logs at the time of their removal from said land."

The chancellor overruled the exceptions to the report and rendered a decree for the amount found due by the master, principal and interest, amounting to $ 15,461, and allowed the master a fee of $ 500, and directed that the judgment be credited with the sum of $ 1,060.83, it being the amount of taxes paid by the defendant on the lands as found by the master. From this decree the defendant appealed.

Appellant contends that when this cause was remanded after reversal the chancery court had only the power to enter a decree as directed by this court, which was to cancel the tax deed under which appellant held, and to quiet the title of appellee. It cites Collins v. Paepcke-Leicht Lumber Company, 82 Ark. 1, 100 S.W. 86, to support its contention. That was a suit...