Forest Product & MFG. Co. v. Buckley

• Decision Date: 26 October 1914
• Docket Number: 16480
• Citation: 66 So. 279,107 Miss. 897
• Parties: FOREST PRODUCT & MFG. CO. v. BUCKLEY
• Court: Mississippi Supreme Court

66 So. 279

107 Miss. 897

FOREST PRODUCT & MFG. CO. v. BUCKLEY

No. 16480

Supreme Court of Mississippi

October 26, 1914

APPEAL from the chancery court of Lawrence county. HON. R. E SHEEHY, Chancellor.

Bill by T. R. Buckley against the Forest Product & Manufacturing Company. From a decree overruling a demurrer to the bill defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, demurrer sustained, and bill dismissed.

Green &amp Green, for appellant.

Butler Easterling & Potter, for appellee.

OPINION

SMITH, C. J.

On May 18, 1899, appellee executed and delivered to the Pearl River Lumber Company the following conveyance:

"For and in consideration of the sum of one hundred dollars cash in hand to us paid, the receipt whereof is hereby acknowledged upon the delivery of these presents, we do hereby convey and warrant unto the Pearl River Lumber Company, a Mississippi corporation, all timber and timberlike trees being, growing, and standing upon the following described lands, situated, lying, and being in Lawrence Co., Mississippi, to wit: Northwest quarter of northeast quarter, section 22, township 9, range 20 west, forty acres more or less, with the right to enter, cut, and remove the same at pleasure; also the right to construct and operate a railroad or tramway over the same, and a perpetual right of way of one hundred feet between parallel lines for railroad purposes."

Afterwards the title to this timber by mesne conveyances from the Pearl River Lumber Company became vested in appellant. The timber conveyed by this deed remaining uncut, appellee filed his bill in the court below in December, 1910, alleging that, inasmuch as appellant and its grantors had failed to remove the timber within a reasonable time, it had lost all right so to do, as well as its title thereto, and praying, first, that the deed made to him to the Pearl River Lumber Company, together with the other conveyances by which the title came to appellant, be canceled and held for naught; and, second, if mistaken in this, that the land, together with the trees growing thereon, be sold and the proceeds divided between appellant and appellee. In the brief of counsel for appellee it is stated that this division should be made as follows:

"The Forest Product & Manufacturing Company to be awarded the value of the pine timber growing on the land in 1899, and Buckley to be awarded the value of the land as land, and the value of the timber which has grown on the land since 1899."

To this bill appellant interposed a demurrer, and from a decree overruling this demurrer this appeal is taken.

Counsel for appellee frankly concede that, in order for the first of appellee's contentions to be sustained, it will be necessary for us to overrule the case of Butterfield v. Guy, 92 Miss. 361, 46 So. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540, but they very strenuously urge after an exhaustive review of the authorities, that this case was not well considered, is unsound, and should be overruled. We have given this argument most careful...