Delta Wild Life & Forestry, Inc. v. Bear Kelso Plantation, Inc.

• Decision Date: 28 May 1973
• Docket Number: No. 47142,47142
• Citation: 281 So.2d 683
• Parties: DELTA WILD LIFE & FORESTRY, INC. v. BEAR KELSO PLANTATION, INC.
• Court: Mississippi Supreme Court

Page 683

281 So.2d 683

DELTA WILD LIFE & FORESTRY, INC. v. BEAR KELSO PLANTATION, INC.

No. 47142.

Supreme Court of Mississippi.

May 28, 1973.

Rehearing Denied Sept. 11, 1973.

Brunini, Grantham, Grower & Hewes, William Timothy Jones, Jackson, Brunini, Everett, Beanland & Wheeless, Vicksburg, Carlton & Henderson, Sumner, for appellant.

Teller, Biedenharn & Rogers, Vicksburg, for appellee.

WALKER, Justice:

This is an appeal from a final decree of the Chancery Court of Issaquena County dismissing appellant's bill of complaint which had sought, among other things, to remove clouds on 1,240 acres of land owned by it.

We affirm.

Delta Wild Life & Forestry, Inc., referred to as Delta, an incorporated hunting club, owns 20,000 acres of deer hunting lands in Issaquena County, Mississippi.

The appellee, Bear Kelso Plantation, Inc., referred to as Bear Kelso, is the holder of a lease covering 1,240 acres of Delta's land. The lease, originally entered into by Delta, lessor, and G. L. Johnson, lessee, on August 21, 1962, provided for annual rental payments of $2,500 per year and was for an initial five-year period with the privilege of lessee to renew same for four successive five-year periods at a rental of $2,500 per year. It also provided that if any of the described premises should, during the term of the contract or any renewal thereof, be assessed for ad valorem taxes at a value 'in excess of that at which uncultivatable land in Issaquena County is assessed' that the lessee, in addition to the annual rental specified, would pay the increase in as valorem taxes thereby imposed as additional rental. (Emphasis added).

Said lease also provided, among other things, that:

LESSEE shall have the right and privilege to put any part or all of said land in pasture, and to erect such fences or other improvements thereon as Lessee may need in and about such operations, and may remove at Lessees (sic) option such fences or improvements at the termination hereof.

At the time G. L. Johnson entered into the above mentioned lease, he and his brother, Wendell Johnson, were partners in a vast agricultural operation throughout Issaquena, Sharkey and Warren Counties. As a part of these operations, they were raising cattle on what was described by the witnesses as woods pasture. After leasing the 1,240 acres in question, they fenced these lands and ran cattle thereon until sometime prior to the middle of 1964 by which time they had sold all of the cattle. During this same period, beginning in 1963, the Johnsons began to clear all of the trees and buck vines from the leased lands and converted them into cultivated row crop lands for the purpose of growing soybeans. Prior to being cleared, a large portion of the land was covered with timber, the value of which was estimated at some $23,370. It was estimated that the cost of clearing the land would run between $75 and $90 per acre, and that the total cost of drainage structures was approximately $30,000. The total of this being well in excess of $100,000. The clearing of the land came to the attention of Delta through its members as early as 1963 or 1964 and a meeting of the Delta Wild Life Corporation was had at which the problem was discussed. Later, in 1965, G. L. Johnson made a request of Delta that he be permitted to sublet the land, which request was denied as evidenced by the minutes of the stockholders' meeting of Delta Wild Life dated August 17, 1965, wherein it is stated:

Norman Weathersby read a letter from Dr. Johnson (G. L. Johnson) requesting that the provision in his lease contract restricting subleasing be eliminated. On motion by Dr. Otkin seconded by Phil Thornton said request was denied. Mr. Smith quoted that Dr. Johnson (G. L. Johnson), in some respects, in his opinion violated some of the provisions of his lease contract. On motion of Dr. Otkin seconded by Phil H. Thornton it was ordered that Mr. M. L. Smith be authorized to confer with an attorney and employ him to take such action as may be necessary with reference to such violations.

Although the minutes authorized M. L. Smith to confer with and employ an attorney to take such action as necessary with reference to the alleged violations, no action was immediately taken and Delta continued to accept the $2,500 annual rental on the 1,240 acres through 1968.

It was also shown that Delta 'saw the light,' as one witness put it, after observing the Johnsons' successful soybean operations. Thereafter, by a second lease, Delta cleared and leased to Johnson additional acres known as the 'thousand acre deadening,' being between 1,000 and 1,200 acres. This second lease to the Johnsons did not prohibit a sublease and they sublet it in part to Claude Cook and in part to W. L. and Lee Braxton. On January 10, 1967, when the second lease had about four years to run, Delta decided after negotiations to allow the Johnsons to sublease the disputed 1962 lease on certain conditions. Delta's corporate minutes of that date provide:

BOARD OF DIRECTORS JANUARY 10, 1967

1. RESOLVED, on motion of Jerry Falls, seconded by W. C. Luckett, that

(a) Delta Wild Life obtain cancellation of that certain one-year lease from Delta Wild Life to G. L. Johnson and Wendell Johnson covering all newly cleared lands of Delta Wild Life lying north of the P. H. Thornton Camp-Valley Park Road, and

(b) immediately upon obtaining said cancellation of lease the aforesaid land now covered by the aforesaid lease to G. L. Johnson and Wendell Johnson be leased by Delta Wild Life to the Braxton Brothers and Claude Cook for the remainder of the primary term of the aforesaid current lease to G. L. and Wendell Johnson. The terms of such lease to Braxton Brothers and Claude Cook shall be identical in all respects, word for work, with the term of the aforesaid current lease now held by G. L. and Wendell Johnson, included but not limited to acreage rental and option to renew as specified therein.

2. RESOLVED, on motion of Jerry Falls, seconded by W. C. Luckett, that if but not until all the matters set forth in Paragraph One hereinabove are successfully concluded as specified therein, then but only in that event, Delta Wild Life shall amend that certain written lease from Delta Wild Life to G. L. Johnson and Wendell Johnson covering all these portions of Sections 17, 18 and 20, Township 9 North, Range 6 West, Issaquena County, Mississippi, now under a four strand wire fence, and being all of Section 17, 80 acres more or less in Section 18, and the cleared part of Section 20, so as to grant the said G. L. and Wendell Johnson the right to sublease said premises,...