Coley v. W.P. Brown & Sons Lumber Co.

• Citation: 251 Ala. 235,37 So.2d 125
• Decision Date: 07 October 1948
• Docket Number: 7 Div. 957.
• Court: Alabama Supreme Court
• Parties: COLEY et al. v. W. P. BROWN & SONS LUMBER CO., Inc., et al.

37 So.2d 125

251 Ala. 235

COLEY et al. v. W. P. BROWN & SONS LUMBER CO., Inc., et al.

7 Div. 957.

Supreme Court of Alabama

October 7, 1948

Irby A. Keener, of Centre, for appellants.

Hugh Reed, Jr., of Centre, and Lusk, Swann & Burns, of Gadsden, for appellees.

BROWN, Justice.

This appeal is from the final decree of the circuit court sitting in equity making permanent a temporary injunction theretofore issued at the instance of the appellees, restraining and enjoining appellants from interfering with the appellees--the lumber company and its contractee--in cutting and removing timber on a large tract of land in Cherokee County which it purchased from appellants. The deed conveying the timber and timber rights, reciting the consideration paid by appellee, was executed and delivered on August 30, 1938. The deed of conveyance embodied the following stipulations and covenants:

'It is further mutually agreed by and between the Grantors and the Grantees that the Grantee herein is to have all of the rights and privileges heretofore conveyed for a period of five (5) years on all of the above lands, with the exception of the above limitations and in addition thereto, the Grantee herein is to have an additional two year period, making a total of seven (7) years from the date hereof to cut and to remove the timber on that portion of the above described lands that is located or situated upon the mountains, and this grant of seven years shall particularly apply to the lands situated in Sections 34 and 35 of Township 11, South of Range 9, as above described. It is also further hereby agreed that should conditions beyond the control of the Grantee prevent the removal or the cutting of any portion of the timber hereinbefore conveyed, then and in that event, the Grantors hereby covenant and agree that they shall grant an extension of one year from the termination of the times hereinbefore set out to the Grantees without any further consideration therefor, than the execution of these presents and that after the termination of said period of five (5) years, and the termination of the grace period of one year as to all of the timber except that portion thereof that is located or situated on the mountain, and after the termination of the period of seven (7) years from this date and after the expiration of such one year grace period thereafter as to the timber located or situated on the mountain, it is mutually understood and agreed that all rights hereunder are to cease and terminate at the expiration of said periods of time, and shall revert to and vest in the Grantors herein or their heirs and assigns.

'Grantors reserve the right to take possession of the lands or any part or portion thereof after the Grantee has finished cutting all of the timber on any tract or tracts for the purpose of clearing the same and putting it into cultivation, this right to be exercised by and with the consent of the Grantee, its successors or assigns. * * *.'

The lands involved in this litigation are those as to which the complainants were granted the right to remove the timber within five years, with the covenant to extend the time, 'should circumstances beyond the control of the grantees prevent the removing or the cutting of any portion of the timber hereinbefore conveyed.'

While the complainants were in the exercise of the right to cut and remove the timber from the lands during the year 1943 and before the expiration of the five years, the complainants requested an extension of said time under said covenant, which the defendants refused to grant and notified complainants that after the 30th day of August, 1943, complainants' rights under the conveyance would terminate.

At the expiration of the five year period appellants warned complainants not to trespass and brought an action at law against the complainants for damages for trespassing on said lands and cutting and removing timber and for the statutory penalty therefor. It was at this juncture that the complainants filed the bill in this case and applied to the judge of the circuit court for a temporary injunction which was granted.

The defendants' contention, stated in their answer and cross-bill, is that 'on or after August 30, 1938, the date of the conveyance, plaintiffs exhibit #1, to plaintiff corporation, plaintiff corporation has purchased the timber from other lands aggregating some twenty-five thousand acres or more in Jackson, DeKalb and Cherokee County, Alabama, and in Chatooga and Floyd Counties, Georgia and that from the timber purchased after defendants timber was purchased by said plaintiff corporation, several millions of feet of timber have been cut, the amount being many times the total of the timber upon defendants land at the time of the conveyance, plaintiff corporation knowing at the time it purchased said other lands and cut the timber therefrom that the time period upon defendants lands expired on August 30, 1943, and that despite this knowledge continued its operations on other lands than those of defendants, with the expressed purpose and intention of obtaining an additional years growth of the timber upon defendants said lands without compensating defendants therefor.

'Defendants further aver that ample labor, machinery and equipment was available to cut and remove said timber from off said lands within said 5 year period of time, had plaintiffs been willing to pay the prevailing prices paid by other lumber people and concerns for like labor, such prices being entirely reasonable and that any failure of the plaintiff corporation to obtain such labor and service was due entirely to its own fault in refusing to pay prevailing prices for like labor but insisting upon paying its employees a lower price for their said labor than was being paid by other people and concerns engaged in like business.'

The final decree states the question presented and the conclusion of the court after consideration of the testimony submitted in the case. We quote from the decree:

'The question of prime importance in this case and on which a decision turns is whether conditions beyond the control of the grantee prevented it from cutting and removing the timber from the lands in which it had five years for such operation. The greater part of the testimony offered by both sides is directed to that point. Many witnesses testified for both the complainants and respondents and the record is voluminous. It is not practical nor necessary to...