Hall v. Wellman Lumber Co.

• Decision Date: 16 April 1906
• Citation: 94 S.W. 43,78 Ark. 408
• Parties: HALL v. WELLMAN LUMBER COMPANY
• Court: Arkansas Supreme Court

94 S.W. 43

78 Ark. 408

HALL v. WELLMAN LUMBER COMPANY

Supreme Court of Arkansas

April 16, 1906

Appeal from Jefferson Chancery Court; John M. Elliott, Judge affirmed.

STATEMENT BY THE COURT.

The Wellman Lumber Company brought this suit in equity to restrain the defendants, Joseph Hall and J. N. Albright, from cutting and removing the cypress timber owned by plaintiff from certain lands in Jefferson County.

The lands were formerly owned by Abraham Rhea, J. S. Anderson and Leonidas Bills; and W. H. Langford is the owner thereof under mesne conveyances from those parties. Plaintiff claims title to the timber under a conveyance from Langford. Defendants claim the right to cut the timber under a deed executed to them by S. G. Smith and C. S. Sadler, dated May 16, 1903 conveying the cypress timber on said lands. Title to the timber in S. G. Smith is asserted as follows:

That said lands were forfeited to the State for nonpayment of the taxes for the year 1892, and that Smith purchased the same from the Commissioner of State Lands. Rhea and others, the original owners, brought suit against Smith in the Jefferson Chancery Court to cancel said tax forfeiture and the State's deed to Smith, on the ground that the tax sale was illegal and void for sundry reasons stated, and on March 16, 1897, a consent decree was entered in said suit declaring the tax sale and the State's deed to Smith to be void and cancelling the same.

The decree contained further provisions as follows: "It is further decreed by the court that the defendants take nothing for the redemption of the said lands, and that the plaintiffs waive all rights to recover any compensation or damages for any trespass the defendant may have committed on said lands. It is further adjudged and decreed that said defendant, S. G Smith, shall have the right to be and remain in possession of that portion of the said lands which is now in cultivation and under fence for the period of three years, commencing on the first day of January, 1897, and ending on the 1st day of January, 1900, the said defendant having already paid to the plaintiffs the sum of $ 325 for the use and occupancy thereof. It is further decreed that the said S. G. Smith shall have the right and privilege to occupy free of rent the ground upon which his mill is now situated, together with the tenement houses and stables and lots pertaining to said mill until such time as the cypress timber on said lands shall be sawed and marketed, and shall have the right, at any time, to remove from the said lands the said mill, together with all the machinery and attachments thereunto in any manner belonging to said mill, and shall have free ingress and egress over the said land for the purpose of removing the same at such time as he may see proper. It is further decreed that the said defendant, S. G. Smith, shall pay to the plaintiffs the price of fifty cents per thousand feet according to the Scribner's scale for cypress that he may cut or use from the said lands at his mill or otherwise from and after the date of this decree, and that he shall have the right of ingress and egress over the said lands necessary for the purpose of bringing the timber to the mill and hauling shingles and lumber away from it, and said defendant shall keep an accurate account of all the timber cut from the said lands, and scale the same, and settle for and pay for the actual amount of said timber cut from the lands, every three months, and shall make all necessary repairs and improvements on the said lands during the said three years at his own expense."

The plaintiff in its complaint asserted that under the terms of said decree the right of Smith and those claiming under him to remain in possession of the land and cut timber expired on January 1, 1900, and it alleged that during the year 1900 Smith ceased to cut timber and removed his mill from the land. It further alleged that thereafter the plaintiff purchased said lands, and "at great expense erected a mill on or near said land for the purpose of cutting said timber, believing it had a right and title to said timber, and that the rights of Smith had expired with the said three years, and that he claimed no further right to said timber and no further right to cut it, and said Smith knew of the expenditure of plaintiffs in its purchase of the timber and erection of the mill and preparations to cut said timber, and stood by and made no claim to it while plaintiff was making said expenditures, and plaintiff states that said expenditures would not have been made had said Smith then claimed said timber, and plaintiff alleges and submits that said Smith and the defendants claiming under him are now estopped to claim said timber, even if his rights were not terminated by the expiration of said three years and by the removal of his mill and ceasing to cut timber."

It is also alleged that three years were, under the circumstances, a reasonable time within which the timber could have been removed.

At the commencement of the suit the chancellor granted a temporary injunction, restraining the defendants, their agents and employees, from cutting or removing any timber from said lands; and on final hearing of the cause the court granted the relief prayed for and made the injunction perpetual.

The defendants appealed to this court.

Decree affirmed.

Taylor & Jones, for appellant.

1. The appellee, in purchasing, was bound to take notice of the rights of appellants as to the timber, and acquired no interest that could be set up to defeat or impair defendant's rights to the use of the land needed, or to cut and take the timber, as provided in the decree. 57 Ark. 231; 12 Ark. 564; 31 Ark. 491; 36 Ark. 217; 69 Ark. 442.

2. In the absence of allegations (and of proof to sustain the same) of irreparable injury to the freehold, continuing trespass or multiplicity of suits to redress injury, and of insolvency, appellee had its complete remedy at law. 33 Ark. 637. And injunction did not lie. 67 Ark. 413; 75 Ark. 286.

Crawford & Gantt, for appellee.

1. The provision in the decree for cutting cypress timber was by its terms a mere privilege or license granted to Smith. Plaintiff could not hold him to cut the timber, but only to pay for such as he did cut--a privilege which he could abandon when he chose, and did abandon when he removed his mill.

If the decree by its terms does not establish that it was the intention of the parties to limit this privilege to three years, then the law fixes a reasonable time. 11 Am. Dig. Cent. Ed. Col. 1043, § 945; Ib. Col. 1045, § 947; 65 Ark. 51; 2 Parsons on Cont. 661, et seq.; 5 Col. App. 167; 38 P. 390; 56 Ky. 483; 8 N.E. 767; 2 Chit. Cont., 14 Am. Ed. 1062.

2. If Smith's rights had not ceased by lapse of time named in the decree, or by lapse of a reasonable time, the circumstances show an abandonment of his rights. Abandonment may be shown by the conduct of the parties and circumstances. 71 S.W. 1068, and cases cited; 21 S.W. 944; 7 S.W. 467.

3. Defen...