Ellard v. Goodall

• Decision Date: 27 November 1919
• Docket Number: 2 Div. 684
• Citation: 203 Ala. 476,83 So. 568
• Parties: ELLARD v. GOODALL.
• Court: Alabama Supreme Court

83 So. 568

203 Ala. 476

ELLARD v. GOODALL.

2 Div. 684

Supreme Court of Alabama

November 27, 1919

Appeal from Circuit Court, Perry County; B.M. Miller, Judge.

Action by D.H. Ellard against Thomas Goodall for damages for the statutory penalty for cutting trees, conversion of certain trees, and for trespass upon land. Judgment for defendant and plaintiff appeals. Reversed and remanded.

R.B Evins, of Greensboro, and A.W. Stewart, of Marion, for appellant.

Lavender & Thompson, of Centerville, for appellee.

McCLELLAN J.

Judgment was entered on March 19, 1918. The bill of exceptions was presented to the presiding judge on June 17, 1918, "at 11:15 p.m. Central standard time and 12:15 a.m. June 18, 1918, present national legal time." U.S.Stat. at Large, vol. 40, pp. 450, 451 (U.S.Comp.St.1918, U.S.Comp.St.Ann.Supp.1919, §§ 8907r-8907u). The motion to strike proceeds on the theory that the bill of exceptions was not presented within 90 days after judgment entered as required by Code, § 3019. As appears, the bill was presented 45 minutes before the expiration of the ninetieth day if measured by central standard time, but its presentation was 15 minutes late if measured by the time defined by the act of Congress, above cited, approved March 19, 1918. Our statute (Code, § 3019) accords an appellant 90 days of 24 hours each in which to present to the presiding judge the bill of exceptions. The mentioned act of Congress did not effect a repeal or modification of the period fixed by our Code, § 3019, for the presentation of bills of exceptions. It was not so designed. To give that act such operation and effect as this motion to strike contemplates would involve the affirmation that this appellant had been thereby deprived of one hour of the time our statute accorded him in which to present his bill of exceptions. The motion to strike must therefore be overruled.

At the time the instrument to be quoted (in presently material part) was executed, April 30, 1915, the plaintiff, appellant, was the owner in fee of a large body of partially timbered land in Perry county. On that date the plaintiff executed to the defendant (appellee) a warranty deed conveying, with exceptions not necessary now to be stated, this property:

"All the oak (all the varieties), cypress, pine, gum, ash, hickory, poplar, maple, and sycamore. The dimensions of the oak, cypress and gum to be 16 inches in diameter and upwards, measured at the ground, the dimensions of the pine, 12 inches, upwards, measured at the ground," standing on his land.

Embodied in the instrument, which required removal of the timber so conveyed within a stipulated period of five years, were these, among other provisions:

"It is mutually understood and agreed however, between the parties to this instrument that the foregoing conveyance is coupled with and governed by the following stipulations:

"(1) The grant [grantee] herein takes no title to ground or soil, but only to the timber as hereinabove described.

"(2) To enable said grantee to cut and carry away, or cut, manufacture into timber or other timber products and remove same, said grantee is to have all and complete rights of ingress and egress upon the land mentioned above.

"(3) That said grantee or his successors or assigns shall not trespass upon any crops growing up [upon] the above-mentioned land.

"(4) Said grantee shall have the right to erect upon the said lands hereinbefore described, suitable houses, barns, stables, sawmill or commissary to be used in or about the cutting and hauling or manufacturing of the timber cut under the terms of this contract, the sites for the same to be mutually agreed upon by the parties to this instrument, and at the expiration of this agreement said grantee shall, at his option have the right to remove any improvements which he has placed or caused to be placed upon said lands hereinbefore described.

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"(6) It is agreed and understood by the parties to this instrument, D.H. Ellard shall have the right to cut, utilize or remove any timber lying upon the ground at the date of the execution of this contract.

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"(8) It is expressly agreed that this instrument does not convey the pine timber on ten acres of land, more or less, lying in the extreme northwestern part of the said Dozier land, said timber having been heretofore inspected and marked by the grantee and D.H. Ellard."

The plaintiff's (appellant's) case was submitted to the jury on the issues made by the averments of several counts claiming the statutory penalty (Code, § 6035) for the destruction of trees, etc.; by the averments of two counts charging a wrongful taking or conversion of certain trees or saplings; and by two counts in trespass upon the lands described in the complaint. The principal defense interposed was predicated on the right or interest provided for in subdivision 2, quoted ante; the defendant asserting that, in order to avail of the property (the timber) thus conveyed to him and to enjoy the privileges accorded him, he was entitled to use some of the smaller timber on the land to construct a causeway across marsh land in order to render available the right or interest secured to him by subdivision 2, ante. The instrument, with particular reference to the subdivision just mentioned, vested in the grantee, defendant, an easement only, passing to him no title to or interest in the soil over which the easement was granted. Long v. Gill, 80 Ala. 408, 410; Washburn on Easements (4th Ed.) pp. 10, 11; San Francisco v. Calderwood, 31 Cal. 585, 91 Am.Dec 543; 9 R.C.L. pp. 784, 785; Emans v. Turnbull, 2 Johns. (N.Y.) 313, 3 Am.Dec. 427; Herman v. Roberts, 119 N.Y. 37, 23 N.E. 442, 7 L.R.A. 226, 16 Am.St.Rep. 800; Atkins v. Bordman, 2 Metc. (Mass.) 457, 37 Am.Dec. 100. The location and width of the easement not being defined, these features of the right are and were such as are or were reasonably necessary to enable the grantee to effect the purpose designed to be subserved in granting the easement. Atkins v. Bordman, 2 Metc. (Mass.) 457, 37 Am.Dec. 100, 106; Long v. Gill, supra. The purpose unequivocally expressed in definition of the right given was that the easement should be such as to enable the "grantee to cut and carry away, or cut, manufacture into timber or other timber products and remove" the standing timber conveyed by the instrument. In Atkins v. Bordman, supra, it was remarked that the definition of the purpose of the grant of the instrument was an element of distinct aid to the court in ascertaining the dimensions and the location thereof. To effect the purpose entertained by these parties, the easement granted comprehended "all and complete rights of ingress and egress upon the land" described in the instrument, and under it the grantee became entitled to such way or ways as should be reasonably necessary for the employment of all the means usually adapted to the cutting, manufacturing into timber or other timber products, and removing the standing timber on the land described in the instrument. Lyman v. Arnold, 5 Mason, 195, ...