Hamilton v. Brent Lumber Co.

• Decision Date: 27 June 1900
• Citation: 28 So. 698,127 Ala. 78
• Parties: HAMILTON v. BRENT LUMBER CO.
• Court: Alabama Supreme Court

28 So. 698

127 Ala. 78

HAMILTON v. BRENT LUMBER CO.

Supreme Court of Alabama

June 27, 1900

Appeal from chancery court, Mobile county; Thomas H. Smith Chancellor.

Suit in equity by the Brent Lumber Company against A. J. Hamilton. There was a decree for complainant, from which respondent appeals. Reversed.

The bill in this case was filed by the Brent Lumber Company against the appellant, A. J. Hamilton, and prayed for an injunction pendente lite, which was to be made permanent upon hearing, to restrain the defendant from cutting and removing timber from the lands described as the N. 1/2 of the S.E. 1/4 of section 7, township 4, range 4 E. It was averred in the bill that the lands were included in a grant from the general government to the Mobile & Girard Railroad Company; that the lands upon which was the timber involved in this controversy were purchased by one Abraham Edwards from the Mobile &amp Girard Railroad in January, 1877; that a few days after said purchase, in the same month and year, Edwards and wife conveyed the deed to said lands to one S. T. W. Sandford that S. T. W. Sandford died many years before the filing of the bill, and left surviving him three grown sons and a widow, and also left a will, which was duly probated, in which his three grown sons became the owners of all his property; that the widow of said S. T. W. Sandford died intestate shortly after the death of her husband; that in August, 1896, the sons of S. T. W. Sandford conveyed the lands involved in this litigation to H. D. Ewing, of New York; that in December, 1897, said Ewing sold the timber on said lands in question to the Pensacola Land & Lumber Company, and that in May, 1898, the Pensacola Land & Lumber Company sold to the complainant, the Brent Lumber Company all the standing timber on said lands; that the Brent Lumber Company was a corporation engaged in the lumber business, and was the owner of and operated a large lumber mill for the sawing of timber and the manufacture of lumber; that, in making the purchase of the standing trees and timber upon the lands in question from the Pensacola Land & Lumber Company it was for the purpose of procuring the timber for the manufacture of lumber. It was then averred in the bill that in October, 1898, after the purchase by the plaintiff from the Pensacola Land & Lumber Company, the defendant, A. J Hamilton, entered upon said lands without the consent or authority on the part of the complainant, and began to cut and remove therefrom large quantities of the standing and growing timber, and was continuing to cut and remove the timber from said lands, and that said Hamilton refused, upon the request of the complainant, to discontinue his cutting and removing, and pretended to have the right to cut and remove the timber on said lands by virtue of a purchase from the Hand Lumber Company. The bill then continues as follows: "Orator alleges and shows that said above-described lands in said section 7 have never been in the actual adverse possession or pedis possessionis of any one claiming the title to said lands as against the real owner, as hereinbefore set out, to wit, the said H. D. Ewing; that no one has entered upon said lands, claiming either them or the timber thereon, so far as your orator is informed and believes, until said Hamilton entered thereon as hereinbefore stated, not with any claim of ownership to the land, but for the mere purpose of cutting and removing the trees and timber therefrom. Orator shows to your honor that it has not the legal title to said land, and is unable to bring any ejectment suit against Hamilton to dispossess him of the same, or any right or interest therein, in any such suit. Orator is informed and advised, and upon such information and advice alleges, that no damage could properly be assessed by a jury in a court of common law, under the rules of evidence therein, that would adequately or fully compensate orator for the loss occasioned by the past, present, and continuous cutting and removal of the timber growing on said lands in said section 7, and also for the reason that orator bought said timber on said land with the idea and purpose of holding the same as long as it saw proper so to do, and of cutting and removing same at such time in the future as it might deem proper, and as may be profitable to it in the conduct, management, and operation of its sawmills, and in sawing up said timber and trees for sale in the public market. And orator is advised, and upon such advice alleges, that in any suit brought by it in the common-law court, either for damages, or for the recovery in specie of said timber so cut and removed, if it could be found and identified, the legal title to the land would probably be involved, and would be a principal or important factor in the determination of such case; that in personal and transitory actions of such kind the legal title to lands cannot be involved and determined, so that orator would be remediless at law, or could not have adequate compensation. Your orator is informed and advised, and upon such information and advice alleges, that, even if it had an undoubted right to maintain an action at law against said Hamilton, a large number and numerous suits...