Florala Sawmill Co. v. J.T. Parrish & Bro.

• Decision Date: 23 April 1908
• Citation: 155 Ala. 462,46 So. 461
• Parties: FLORALA SAWMILL CO. ET AL. v. J. T. PARRISH & BRO. ET AL.
• Court: Alabama Supreme Court

46 So. 461

155 Ala. 462

FLORALA SAWMILL CO. ET AL. v. J. T. PARRISH & BRO. ET AL.

Supreme Court of Alabama

April 23, 1908

Appeal from Chancery Court, Covington County; L. D. Gardner Chancellor.

Suit by the Florala Sawmill Company and others against J. T. Parrish and others. From a decree dissolving an injunction complainants appeal. Affirmed in part, and in part reversed and rendered.

Jones &amp Jones, for appellants.

Parks &amp Rankin, for appellees.

SIMPSON J.

The bill in this case was filed by the appellants against the appellees. The gravamen of the complaint is that after the expiration of a lease for turpentine purposes the respondents refused to deliver up the premises, but continued to "dip and scrape the turpentine from the pine timber and to remove the same from the land," are continuing to do so, and are insolvent. The bill prays for an injunction (which was granted) prohibiting respondents from "chipping, dipping, scraping, or streaking, or in any manner interfering with, the timber and turpentine on the lands." The chancellor, in his opinion, states that "it seems to be conceded by counsel for complainants and respondents that the only question presented to the court for decision is whether or not the respondents have the right, under the allegations of the bill, to go upon the lands * * * and within a reasonable time after the expiration of such lease remove the crude turpentine in the boxes and that which has formed on the body of the trees, usually known and called 'the dip and scrape.' " Inasmuch as the bill alleges that respondents refuse to deliver possession, and also prays that they be enjoined from "chipping," as well as "dipping and scraping," the chancellor confines his decree to dissolving the injunction "in so far as said injunction restrains the respondents from dipping or scraping any of the timber on the land described in the bill within a reasonable time, and removing from said lands within a reasonable time any turpentine of respondents already dipped or scraped, and from going on said lands within a reasonable time for this purpose."

The appellee moves to dismiss the appeal, on the ground that section 428 of the Civil Code of 1896 provides for appeals from decrees sustaining, dissolving, or discharging injunctions, but does not provide for appeals from decrees modifying injunctions. There is no merit in this contention. The injunction is dissolved as to the main, if not really the only, point of contention in the case, and it would be too strained a construction of the statute to hold that, because there were certain other minor matters mentioned in the injunction, the party could not appeal from the decree dissolving it as to the main point in the case.

The question, then, presents itself: What is the nature of the interest in the "scrape" and "dip," and what are the rights of the lessee, after the determination of his lease? There are certain fundamental principles which have a bearing upon this case, to wit: First, that as between landlord and tenant, where the termination of the tenancy is uncertain, as where the lease is for life, when the tenancy is brought to an end by the happening of the uncertain event the tenant is entitled to emblements; but, second, where the tenancy is for a certain period, the tenant is not entitled to emblements on the termination of the tenancy; and, third, that the tenant has a reasonable time, after the termination of the tenancy, to enter upon the premises and remove emblements. 2 Taylor on Landlord & Tenant (9th Ed.) §§ 534, 536; 24 Cyc. p. 1070. As to property which belongs to the tenant, and which does not come under the definition of emblements, the tenant may, within a reasonable time after the termination of even a definite tenancy, enter upon the premises and remove the same. 24 Cyc. p. 113; Daniels v. Brown, 34 N.H. 454, 69 Am. Dec. 505, and note. So it becomes important, in this case, to determine whether the property in question came under the definition of...