Crowder v. Fordyce Lumber Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 417,93 Ark. 392
• Parties: CROWDER v. FORDYCE LUMBER COMPANY
• Court: Arkansas Supreme Court

125 S.W. 417

93 Ark. 392

CROWDER v. FORDYCE LUMBER COMPANY

Supreme Court of Arkansas

February 7, 1910

Appeal from Dallas Chancery Court; E. O. Mahoney, Chancellor reversed.

Judgment reversed and remanded.

Paul G Matlock and Jno. H. Crawford, for appellants.

The complaint states a cause of action, and the demurrer should have been overruled. Appellants own a revisionary interest and are entitled to maintain an action for damages to the inheritance. Under the common law the action of trespass on the case would lie. 18 S.C. 551; 1 Hill (S. C.) 260; 42 W.Va. 312; 17 F. 216; 43 N.H. 320; 6 Conn. 328; 4 Har. 181; 64 Mass. (10 Cush.) 232; 82 Mass. (16 Gray), 583; 25 N. J. L. (1 Dutch.) 97; 50 Barb. 612; 25 N. J. L. (1 Dutch.) 255; 43 W.Va. 562; 4 Jones L. (N. C.) 387; 2 Hill, Ch. (S. C.) 277; 14 Am. St. Rep. 626. The Code has, however, abolished all forms of actions, and disputed questions are determined on the merits. Kirby's Dig., § 5980.

Gaughan & Sifford and T. B. Morton, for appellee.

The complaint states an action quare clausum fregit, which appellants were not entitled to maintain; and the demurrer was therefore properly sustained. 11 Ark. 294; 18 Id. 284; 31 Id. 301; 44 Id. 74; 26 Id. 496; 76 Id. 426; 65 Id. 600; 85 Id. 208; 23 Pick. 88; 43 N.H. 420; 4 Am. St. Rep. 204; 2 Greenleaf, Ev. § 613.

OPINION

MCCULLOCH, C. J.

Plaintiffs, W. P. Crowder and others, instituted this action at law against defendant Fordyce Lumber Company to recover damages to a tract of land in cutting and removing timber therefrom. Plaintiffs are alleged to be the owners of the land in reversion, after the expiration of a widow's life estate, same having been assigned to the widow as her dower. After the cause had been transferred to the chancery court on defendant's motion, the court sustained a demurrer to the complaint. A decree was entered dismissing the complaint, and plaintiffs appealed.

The chancellor sustained the demurrer on the ground that this is an action of trespass, and that plaintiffs cannot maintain such an action for the reason that the complaint shows on its face that they are out of possession of the land. In support of the court's ruling, it is insisted by counsel for appellee that the action is in the old form of trespass quare clausum fregit, which is to recover for an injury to the possession of land, and that plaintiffs cannot maintain it because they do not allege that they are in possession, but, on the contrary, allege that there is an outstanding life estate in the widow.

This was the rule under the common law practice, and is yet, under our Civil Code of Practice, in actions to recover damages for injuries to the possession of land. McKinney v. Demby, 44 Ark. 74. But the present action is not one to recover damages for injury to the possession of the land, for plaintiffs do not claim to be in possession. They set forth a permanent injury done to the freehold, and seek to recover the damages sustained by reason of the injury to their reversionary interest.

They are not without a remedy for such an injury. At common law, the action of trespass on the case would have been the appropriate remedy. Shattuck v. Gragg, 23 Pick. 88; Putney v. Lapham, 64 Mass. 232; Cannon v. Hatcher, 19 S.C. L. 260, 1 Hill 260; Jordan v. Benwood, 42 W.Va. 312, 26 S.E. 266; Lane v. Thompson, 43 N.H. 320; Tinsman v. Belvidere Delaware Rd. Co., 25 N.J.L. 255; But, under our Civil Code of Practice, forms of actions are abolished, and all that is necessary is to state facts sufficient to constitute a cause of action within the jurisdiction of the court.

The...