Florida Yellow Pine Co. v. Flint River Naval Stores Co.

• Decision Date: 18 July 1913
• Parties: FLORIDA YELLOW PINE CO. et al. v. FLINT RIVER NAVAL STORES CO.
• Court: Georgia Supreme Court

78 S.E. 900

140 Ga. 321

FLORIDA YELLOW PINE CO. et al. v. FLINT RIVER NAVAL STORES CO.

Supreme Court of Georgia

July 18, 1913

Syllabus by the Court.

It was charged in the petition and admitted in the answer that plaintiff and defendant claimed from a common grantor the title to and the right to box the trees for turpentine purposes on a described lot of land. Such admission relieved the plaintiff of the necessity of showing title into the common grantor in an action to enjoin the defendant from using the timber for turpentine purposes.

A party to a suit will not be allowed to disprove an admission made in his pleadings, without withdrawing it from the record.

A trespass may be restrained in equity, where it is a continuing one, and will give rise to a multiplicity of suits, although the trespasser may be solvent.

A temporary injunction, restraining the defendant from entering upon land and boxing for turpentine purposes timber claimed by the plaintiff, is not mandatory in character, although the defendant may be engaged in boxing the timber at the time the preliminary restraining order was granted.

Error from Superior Court, Decatur County; Frank Park, Judge.

Action by the Flint River Naval Stores Company against the Florida Yellow Pine Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

W. V Custer, of Bainbridge, for plaintiffs in error.

A. H Russell and M. E. O'Neal, both of Bainbridge, for defendant in error.

EVANS P.J.

1. The plaintiff sought to enjoin the defendants from cupping boxing, and extracting gum from the trees on a described tract of land. In the petition it was alleged that W. N Spear on November 10, 1905, being the owner of the timber executed to J. J. Calder a turpentine lease for the purpose of boxing, working, and otherwise using the timber for turpentine purposes, the lease providing that the lessee may commence working the timber for turpentine at any time that he may desire, and shall have the right to continue to work the timber for the full term of six years from the time the boxing and working first commenced, which lease was duly recorded February 2, 1906; that Calder assigned his interest in the lease to the plaintiff. In the fifth paragraph it was alleged that the defendants about March, 1912, entered upon the land and are cupping the timber for turpentine purposes; and in the seventh paragraph it was alleged that the plaintiff and defendants claimed under the same common grantor, to wit, W. N. Spear, and that the plaintiff's title is clear. In their answer the defendants admitted having entered upon the land and worked and cupped the timber thereon under a lease made by W. N. Spear to the defendants on February 17, 1911. In response to the allegations of the seventh paragraph the defendants denied the same, and said that the petitioner had no title in law or in equity to the timber. The effect of the pleadings is to admit that both claim under a common grantor. The defendants expressly admitted that they entered upon the land and worked the timber for turpentine purposes by virtue of a conveyance from the same person that the plaintiff...