Glover v. Falls

• Decision Date: 16 June 1919
• Docket Number: 20767
• Court: Mississippi Supreme Court
• Parties: GLOVER ET AL. v. FALLS

82 So. 4

120 Miss. 201

GLOVER ET AL. v. FALLS

No. 20767

Supreme Court of Mississippi

June 16, 1919

Division B

APPEAL from the chancery court of Tallahatchie county, HON. JOE MAY Chancellor.

Suit by A. Falls against N. M. Glover and others. From a decree for complainant, respondent appeals.

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

Affirmed.

Ward &amp Ward and Monroe McClurg, for appellant.

Hays, Stingily & Whitten, for appellee.

OPINION

STEVENS, J.

Appellee, as complainant, prayed for and obtained a temporary injunction against N. M. Glover, appellant, and certain other defendants restraining them from opening or making use of new roads or from going across the growing crops of cotton and corn on the lands of the complainant with their teams, wagons, log skidders, and laborers, and from interfering with the due cultivation of appellee's growing crops. The temporary injunction upon final hearing was made perpetual, and from this decree N. M. Glover, the principal party interested, prosecutes this appeal. The bill of complaint charges, and the testimony shows, that the complainant sold to Mr. Glover all of the merchantable "tupelo gum" timber from ten inches and up on what is commonly known as "Snowbrake," situated on lands of the complainant a short distance west of the station of Albin, in Tallahatchie county, and more definitely described in the written conveyance of this timber. Glover, the party of the second part, was to have two years in which to remove the timber, and, for the purpose of removing the logs and also for the purpose of hauling any lumber manufactured from the logs to the railroad, the complainant granted unto the party of the second part "the privilege of ingress and egress to said tract of timber." It is further alleged in the bill that the said brake at high-water times, or during the periodical rises of the water in the brake, carried sufficient water to float timber from the said brake to the defendant's sawmill; and between the said brake and the railway station and between plantation roads already laid out and in use at the time said contract was executed the complainant owned several hundred acres of farm lands in a high state of cultivation, and that when this suit was instituted he had crops of growing corn and cotton thereon, and that irreparable injury to these growing crops would be done if the defendants hauled logs across the plantation as they contemplated and threatened to do. It is further alleged that when the water was not up in the brake there was a practical roadway around the rim of the brake and between the brake and the complainant's growing crops, which was a practical and convenient way by which timber might be hauled, and that during high water logs could be floated down the brake; that when the contract was entered into both parties thereto contemplated that the logs would in fact be floated out of the brake, but that when the water was not up the defendants were offered the use of the said road around the rim of the brake and a system of plantation roads that was sufficient and reasonable for the removal of the timber.

The cause was set down for hearing on bill, answer, motion to dissolve, and proof. On the trial of the case the chancellor, by agreement of the parties, went to the brake and personally viewed the plantation, the road around the rim of the brake and the system of plantation roadways in use at the time the contract was entered into, the ways offered to the defendant by the complainant, and also inspected the ways which the defendant threatened to use, and after this inspection and after hearing the testimony in the case entered a decree overruling the motion to dissolve the injunction and entered at length a final decree setting forth his findings of facts and perpetuating the injunction with slight modifications. It appears that a civil engineer made and filed as exhibit to his testimony a certain map showing the roads, and the chancellor by decree designated the ways which defendants might use and those which they were enjoined from using. The decree, among other things, recites that--

The chancellor "is satisfied that the complainant has offered the defendants ways which are entirely sufficient and reasonable for the removal of the timber on Snowbrake, to wit, the road between the timber line on said brake and the crops which are grown on said land and the system of plantation roads, together with reasonable right of way into said first-named way, and skidding stations at reasonable intervals and places; and the court being further satisfied that the ways proposed by the defendants, and by them threatened to be used, were unreasonable," etc.

The chancellor declined to award any damages by reason of the suing out of the preliminary injunction and taxed the defendant with the costs.

It appears that the preliminary injunction was granted on the ex parte application of the complainant. Snowbrake is in a crescent, and the average timber in the brake is approximately one-eighth of a mile wide.

There is evidence tending to show that Mr. Glover, in 1917, cut away "the brush, bushes and obstruction" to the width of twenty or twenty-five feet, so that logs could be floated to the mill, and did in fact float some timber prior to July, 1917, when there was an enforced shut down by the alleged illness of...