Holly Hill Lumber Co. v. Grooms

• Decision Date: 15 October 1941
• Docket Number: 15309.
• Citation: 16 S.E.2d 816,198 S.C. 118
• Parties: HOLLY HILL LUMBER CO., Inc., v. GROOMS et al.
• Court: South Carolina Supreme Court

16 S.E.2d 816

198 S.C. 118

HOLLY HILL LUMBER CO., Inc., v. GROOMS et al.

No. 15309.

Supreme Court of South Carolina

October 15, 1941

J Frank Eatmon, of Moncks Corner, and John I. Cosgrove, of Charleston, for appellants.

T B. Bryant, Jr., of Orangeburg, and Marion F. Winter, of Moncks Corner, for respondent.

BONHAM Chief Justice.

The petition for a rehearing in this case is refused. However the prevailing opinion heretofore filed herein is ordered to be withdrawn and there is substituted therefor the following opinion:

This is an action in quare clausum fregit with prayer for injunction against defendants to restrain them from cutting trees and timber on lands in Berkeley County over which the plaintiff claims possession under a timber deed for the timber on said lands.

The complaint sets out the facts upon which plaintiff relies, a resume of which is set out thusly: The corporate capacity of the plaintiff, the location of the land in Berkeley County South Carolina, and the residence of the defendant in the same county; the execution by Hiram Rudd of his deed to William O'Brien, George A. Lammers and Albert J. Lammers to certain timber rights, ways, privileges and easements in lands in said county, thus described: "All that certain piece or parcel or tract of land known originally as Jacob E. Wiggins tract situate in St. James Goose Creek Township, in the County of Berkeley, and State of South Carolina, containing seven hundred and eighty-eight (788) acres, more or less, and bounded and described as follows, to wit: All that tract of land conveyed to Hiram Rudd by Jacob E. Wiggins by deed dated Nov. 27, 1880, and recorded in R. M. C. Office, Charleston County in Book L, page 319. This tract now conveyed being shown on a copy of original plat made by S.W. Joyner in 1847, copied by J. H. Beatty, April 20th, 1900, which is to be recorded contemporaneously with this conveyance. Bounded North by lands of Estate of Wm. Whaley, East by other lands of Grantor, South by Risher, Way & Thrower lands, & West running into Four-Holes Swamp lands owned by D. E. Thrower."

That these timber rights and easements were, by sundry successive conveyances, all of which were recorded, set over, assigned and sold to plaintiff; that defendants are cutting, and threaten to continue to cut, timber on this property of plaintiff. They ask for an accounting for the logs and timber thus alleged to have been cut by defendants, and for damages in the sum of three thousand dollars, for an injunction pendente lite, and for permanent injunction.

The defendants set up for answer:

First, a general denial.

Second, admit the allegations of the first, second, and third paragraphs of the complaint.

Admit, as is alleged in paragraph "sixth," that F. O. Grooms purchased the lands adjoining the tract of land described in the complaint on the North, and that he has since conveyed it to his co-defendant, Beanie Grooms, and that she has since acquired the lands described in paragraph "third," but denies the remaining allegations of that paragraph.

For a second and further defense:

That she (Beanie Grooms) is the owner of the following described tract of land, to wit: "All that certain piece, parcel or tract of land, situate, lying, and being in the County of Berkeley and State of South Carolina, measuring and containing nine hundred (900) acres, more or less, butting and bounding as follows, to wit: On the North by lands now of Cooper River Timber Company; on the East by the estate of X. O. Rudd, on the South by Beanie Grooms; and on the West by Wm. Jeffers and estate of Mose Wilson. Being the same tract of land that the said F. O. Grooms purchased from estate of William Whaley." Which adjoins the land upon which plaintiff claims title to the timber as set forth and described in the complaint in this action, but the lands upon which this defendant has cut and removed timber, if any she has, belongs to and is a part of the tract of land herein described, and is in no wise a part of, affected or covered by the timber deed and contract referred to in plaintiff's complaint.

"2. That neither the said Plaintiff nor any person through or by it claiming has any right, title, interest or estate of whatsoever kind or nature in or to any part or parcel of the real estate herein described and/or the timber or trees thereon standing or growing."

Third: That she and her predecessors in grant have been in sole and exclusive possession of the land above described, and the timber and trees thereon, under claim of title adversely and continuously against the whole world for more than ten years last preceding the commencement of this action.

Fourth: This above defense is repeated, and defendant claims to have been in sole and exclusive possession of this land for more than twenty years last preceding the commencement of this action.

Fifth: That in June, 1938, defendant began cutting and moving timber from the disputed land; that plaintiff acquiesced in, consented and encouraged defendant to cut and remove timber from disputed area, and purchased and paid for several loads of the logs delivered to it, with full knowledge of the place from which the logs came, and plaintiff is estopped by its acts and conduct in asserting any rights adverse to defendant in the remaining timber and trees taken from the area where the timber was cut.

Ninth: That defendant is informed, and believes, that the plaintiff abandoned the said tract of land and the timber and trees remaining thereon.

Tenth: That plaintiff trespassed upon and cut from the land described in the complaint, certain timber and trees which were not intended to be and were not included in the timber deed or contract under which plaintiff claims. That the value of the timber and trees thus cut by plaintiff, wilfully, wantonly and recklessly, is Fifteen Thousand Dollars, and defendant has, by these acts of plaintiff, sustained damage in that amount, for which she asks judgment.

The case was heard by Judge Featherstone and a jury. At the conclusion of the testimony, the plaintiff moved for a directed verdict against all of the defendants on all of the issues. After argument, His Honor directed a verdict for the defendants, O. J. Dangerfield, Charles A. Jones and Anna Belle Jones, and against the defendants, F. O. Grooms and Beanie Grooms, on all of the issues involved, except the value of the timber cut by defendants. This he referred to the jury, who found it to be $948. Motion for new trial was refused. The defendants F. O. Grooms and Beanie Grooms appealed.

The grounds of appeal are stated in nineteen exceptions. In our judgment these make the following questions for our consideration and determination:

1. Was the trial judge correct in his construction of the timber deed?

2. Was the court correct in its ruling that defendant could not prove the original plat of the Hiram Rudd tract?

3. Did the court err in directing a verdict against the defendants on the issue of abandonment instead of submitting that issue to the jury?

4. Did the court err in directing a verdict against the defendants on the issue of estoppel instead of submitting that issue to the jury? 5. Were the defendants entitled to have the issue of their counter-claim submitted to the jury?

In our judgment, the cardinal issue in this case turns upon the proper construction of the timber deed.

His Honor said: "As I understand, the defendants are contending, and have set up in the counter-claim, that there were kinds of timber set up in here not embraced in this contract. It is an entirely new question to me, but my best judgment is that the defendants are right in their contention; and I am going to hold that it was all timber that was on the land, at the time, and not any timber that might be grown there in the future.

"Mr. Bryant: Your Honor, I would like to get your ruling as to what size timber in 1903.

"The Court: I think they had the right to cut anything on there at that time. I put in my ruling, not to embrace anything in the future. Anything that was on there at the time, but nothing in the future.

"Mr. Eatmon: Any sprouts or brushes or anything else?

"The Court: Yes, sir. You can't convey anything not in existence. It must be in existence at the time. I think the language is very broad, and no timber of any size is excluded at all."

The timber deed in question was made by Hiram Rudd in 1903. It conveys: "*** all the timber of every kind and description, both standing and fallen, ***."

Had His Honor confined his ruling to say: "I am going to hold that it was all timber that was on the land, at the time, and not anything that might be grown there in the future," we think the ruling would have been correct, but when he added that it included "sprouts and brushes" and "no timber of any kind is excluded at all," we think he went too far. This conveyance is not one of the fee in the land. It is of an easement to cut the "timber." "Sprouts and brushes" are not timber. The relevancy of this distinction will be seen later.

Black's Law Dictionary, Third Edition, page 1730, has this to say: "Timber. Wood felled for building or other such like use."

The Circuit Court of Appeals of the Fourth Circuit, in the case of Broad River Lumber Company v. Middleby et al., 194 F. 817, 819, said: "*** The court finds that as a general rule the word timber, unless modified or controlled by other expressions in the contract, means as a rule such trees as are fit to be used in buildings or similar construction; that is, trees of such a size as are fit to be used in the construction, either of dwellings or ships. Trees of a size too small to be used for these purposes are not strictly speaking considered as timber ***."

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