Fulcher v. Dierks Lumber & Coal Company

• Decision Date: 12 May 1924
• Docket Number: 369
• Citation: 261 S.W. 645,164 Ark. 261
• Parties: FULCHER v. DIERKS LUMBER & COAL COMPANY
• Court: Arkansas Supreme Court

261 S.W. 645

164 Ark. 261

FULCHER v. DIERKS LUMBER & COAL COMPANY

No. 369

Supreme Court of Arkansas

May 12, 1924

Appeal from Howard Chancery Court; C. E. Johnson, Chancellor affirmed.

Decree affirmed.

W P. Feazel, for appellant.

1. When the court determined that the deed was no longer enforceable as to the timber, it became, and was, its duty to cancel the deed. 130 Ark. 9.

2. An easement or right-of-way is an interest in land, and its transfer is controlled by the same essentials and requirements necessary to convey the fee. 73 Ark. 293; 112 Ark. 572. And this court has uniformly held that, if a conveyance of land fails to describe the land with sufficient certainty to ascertain its identity and location, the grantee takes nothing. 3 Ark. 18; 30 Ark. 640; 48 Ark. 419; 35 Ark 470; 106 Ark. 83; 120 Ark. 69; 117 Ark. 151; Rorer on Railroads, 318. The wise and reasonable requirement of the statute, C. & M. Dig., §§ 8461-2, as to filing a map or profile of the right-of-way in the clerk's office within two years after its acquirement, was never complied with in this case. Rorer on Railroads, 330.

3. Appellant was an innocent purchaser, and, the court having expressly found that he "acquired title to said land by warranty deed * * * and entered into possession thereof without notice of plaintiff's claim of right-of-way except as implied by law from the record of plaintiff's deed, it is difficult to understand why the court did not decree the grant of right-of-way void and cancel the deed, since the record of the grant furnished him no notice of the location of the right-of-way whatever. 131 Ark. 335.

4. If the grant of the right-of-way was ever valid, the same is now void because of the abandonment and nonuse of them by the appellee for more than 20 years.

5. Appellant and his predecessors in title have acquired title to the land over which appellee built its tramway by adverse possession, having had the same inclosed and in actual cultivation for more than 15 years. The law of adverse possession applies to rights-of-way and other interests in land. 127 Am. St. 254; 22 S.W. 353; 87 Am. St. 765; 92 Am. St. 840; 146 Ark. 347.

6. The motion to strike the amendment to the complaint should have been sustained, and it was error to quiet the title in appellee to the 14.53 acres. C. & M. Digest, §§ 1076-1079.

Abe Collins and Lake & Lake, for appellee.

1. The easement is not void for indefiniteness of description. It is not essential that an easement be described by metes and bounds in order to make it effective. All that is required is a reasonably accurate description of the right conveyed. 19 C. J. 971; 130 N.Y. 465, 27 Am. St. Rep. 533; 125 Ark. 357; 67 Miss. 579; 75 So. 574, 576; 197 F. 611, 616; 216 Mass. 248; 98 Miss. 134.

2. Crawford & Moses' Digest, §§ 8461-8462, requiring railroads to file a map and profile of rights-of-way, relate to railroads chartered and operated as common carriers, and have no application here. 159 Ark. 484.

3. There is no merit in the claim that appellant acquired the land without notice of appellee's claim of right-of-way. The law required him to take notice of the deed of Young to appellee appearing on the record and of the easement thereby conveyed. 19 C. J. 939; 108 Ark. 490; 87 Ark. 490.

4. Mere nonuser, however long continued, will not be considered an abandonment of a right-of-way. 97 Ark. 234; 19 C. J. 941, 942, and authorities cited; 1 A. L. R. 884.

5. There is no proof in the record that either appellant or his predecessors in title were claiming adversely to appellee's easement in the land. 19 C. J. 956; 133 Ark. 589; 147 Ark. 521; 160 Ark. 48. The burden was on appellant to show that his possession was actual, hostile, open and exclusive, continuing without break for the full period required by the statute. 65 Ark. 422; 82 Ark. 51; 49 Ark. 266; 61 Ark. 464; 110 Ark. 572; 117 Ark. 579; 126 Ark. 86.

6. Appellant's contention that the motion to strike the amendment to the complaint because the counterclaim set up did not grow out of the transaction on which the original suit is based, is fully answered by C. & M. Digest, § 1197. 134 Ark. 311; 135 Ark. 531; 147 Ark. 521. Chancery, having jurisdiction for one purpose, will retain it for all purposes and grant all relief, legal or equitable, to which the parties are entitled. 113 Ark. 100; 114 Ark. 206; 92 Ark. 15.

OPINION

WOOD, J.

This is an action by the Dierks Lumber & Coal Company, hereafter called appellee, against W. F. Fulcher, hereafter called appellant, to restrain the latter from interfering with the appellee in the construction of certain tramways across lands in the possession of the appellant, but over which appellee desired to run its tramways for the purpose of hauling timber to its mill. Appellee alleged that, in 1904, it purchased of one Thomas J. Young and wife all the pine and oak timber on the west half of the northeast quarter of section 3, township 7 south, range 27 west, and obtained a deed thereto, which it duly filed in the office of the recorder on the 29th day of February, 1904; that, under the provisions of this deed, the appellee, its successors and assigns, were granted a right-of-way one hundred feet in width for the purpose of maintaining, constructing, and operating a railroad thereon, and the full and free right, power and authority, in addition to the right-of-way, to enter upon said lands for the purpose of cutting, sawing, hauling, and carrying away said timber; that appellee, by the terms of said deed, was also granted the right to construct and maintain a tramway of such width as it desired for the purpose of removing the timber from said lands, or from any other land to and over which the appellee might construct its tramways, the intention of the grantor being to grant to the appellee the right to build, maintain and operate the railroad and tramway across the lands owned by the grantor; that the appellant is the present owner of the above tract of land, having acquired title thereto by mesne conveyance from Young, but that he bought subject to the rights of the appellee under its timber deed. The appellee alleged that it was now ready to cut and remove the timber from the above tract of land, but that appellant refused to permit the appellee to enter upon said land for the purpose mentioned. Appellee alleged that, unless it is permitted to build the tramway across the land and remove its timber, it will suffer irreparable injury; that the appellant is insolvent, and that appellee has no adequate remedy at law. Appellee therefore prayed that appellant be permanently enjoined from interfering with appellee's rights.

In his answer, appellant admitted that he was the present owner of the lands described in appellee's complaint, having acquired title thereto by mesne conveyance from Young and wife, as alleged, but denied that he bought the lands subject to the rights of the appellee under its timber deed. He denied that the appellee, its successors and assigns, were granted a one hundred-foot right-of-way through and upon the lands described, but admitted that there was an attempt in the deed by Young to the appellee to grant the right-of-way. He alleged that the deed was now void because the appellee had failed for twenty years to exercise its right to a right-of-way over the lands, and, further, that the deed was void because there was no description of the right-of-way claimed to have been granted. He admits that the deed granted to the appellee, its successors and assigns, the right to construct the tramway, but alleged that the grant to construct the tramway was likewise now void for the reason that there was no sufficient description of such right-of-way in the deed, and for the further reason that the appellee had not attempted to use such grant for more than twenty years.

By way of cross complaint, the appellant alleged that there was no time fixed in the deed for the cutting and removing of the timber from the land by the appellee, and that the deed was now void because the appellee had not exercised its right to cut such timber within a reasonable time, and that it had now forfeited such right, as well as its right to build the tramway across the lands. Appellant alleged that, under the protection of a temporary injunction, the appellee had built two tramways across a large part of appellant's cultivated land, to appellant's damage in the sum of $ 1,000. He alleged that appellee was threatening to go upon the land to cut the timber growing thereon. He alleged that the appellee did not, within two years after the execution of the timber deed to appellee, file with the clerk of Howard County a map or profile showing the location of the right-of-way of its railroad and tramroads which it intended to construct, and had thereby abandoned and forfeited any right it may have had to such right-of-way. Appellant also set up that he and those under whom he held title had been in open, hostile and actual possession of the lands for more than seven years, and had, for this length of time, paid the taxes thereon. He also alleged that the appellee was barred by the statute of limitations and by laches from now locating its right-of-way and from maintaining this action.

The appellee answered appellant's cross-complaint, denying all of its allegations. Appellee also, by an amendment to its complaint, set up that the appellant, for the last six years had cultivated 14.53 acres of land belonging to the appellee, of a rental value of $ 5 per acre, and prayed judgment against the appellant in the sum of $ 435 for such rental, and for an additional sum of $ 19.22 on account of timber cut and removed by appellant from appellee's land, and that it be permitted to offset such judgment against...