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

• Decision Date: 14 January 1926
• Docket Number: 6 Div. 548
• Citation: 108 So. 20,214 Ala. 400
• Parties: COOPER et al. v. W.P. BROWN & SONS LUMBER CO.
• Court: Alabama Supreme Court

108 So. 20

214 Ala. 400

COOPER et al. v. W.P. BROWN & SONS LUMBER CO.

6 Div. 548

Supreme Court of Alabama

January 14, 1926

Rehearing Denied April 8, 1926

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill in equity by Joseph H. Cooper and others, individually and as executors of the estate of Francis Cooper, deceased, and others, against the W.P. Brown & Sons Lumber Company. From a decree dismissing the bill, complainants appeal. Modified and affirmed.

W.M Adams, of Tuscaloosa, for appellants.

Foster Rice & Foster, of Tuscaloosa, for appellee.

BOULDIN J.

It is conceded by appellants in argument that the primary purpose of the bill is to quiet title to lands, and that the other relief sought is incidental. To this end the bill contains all the averments and prayer for statutory relief. Code 1923, §§ 9906, 9908.

The bill proceeds, however, to show that defendant company is the owner of all the merchantable timber 10 inches in diameter and up, 12 inches from the ground, standing and growing upon the lands, by virtue of a timber deed from these complainants. The deed carries the right of ingress and egress for removal of the timber for a period of seven years; the right to "construct, operate, and maintain on said lands such roads, railroads, tramways, and other highways or route of travel over and under said lands as the parties of the second part may desire or find convenient" in logging operations, and to erect sawmills, storehouses, cabins, and other buildings.

The bill then shows defendant has entered and is actively engaged in logging operations on the lands, and complains that some 600 undersized trees have been cut; that a "skidder" is being used without right under the contract; that thereby some 500 trees and saplings under 10 inches have been destroyed; that the soil is being furrowed to the injury of the roots of growing young timber; that fences have been injured in felling timber so as to interfere with pasturage, etc.

In addition to the prayer to quiet title, the bill as amended prays an accounting for damages by reason of such abuses of logging privileges, and that the cause be retained for such accounting in the future. The original bill was filed some six months before the expiration of logging rights under the deed.

The primary purpose of our statutory proceeding to quiet title in equity is to enable the owner in peaceable possession of lands, and so cut off from a remedy at law, to have determined adverse claims thereto, when no suit is pending to test such claims. To this end any incidental relief, such as removing a cloud or other relief designed to protect the complainant in the quiet and permanent enjoyment of his property, may be had. Like other suits in equity, if the court has acquired jurisdiction for the purposes of the statutory relief, it may upon proper allegations and proof proceed to do complete justice in the premises, including relief which might be had in a separate action at law. Subject to the rule of multifariousness, a bill for statutory relief may be joined with averments and prayer for other relief. In such case on general principles of equity the complainant may have relief on either or both aspects of the bill as the evidence may warrant. If the bill be held multifarious on demurrer, complainant may elect by amendment the aspect upon which he will proceed. Sloss-Sheffield Steel & I. Co. v. Trustees, 30 So. 433, 130 Ala. 405. But, if the sole equity of the bill upon which the jurisdiction of the court rests is the statutory proceeding to quiet title, and the bill is insufficient in this regard in failing to set up the jurisdictional facts, demurrer to the whole bill for want of equity must be sustained, and the cause cannot be retained for incidental relief equally obtainable at law.

The bill before us, while containing the general...