Irwin v. Shoemaker

• Decision Date: 30 June 1920
• Docket Number: 3 Div. 445
• Citation: 205 Ala. 13,88 So. 129
• Court: Alabama Supreme Court
• Parties: IRWIN v. SHOEMAKER et al.

88 So. 129

205 Ala. 13

IRWIN v. SHOEMAKER et al.

3 Div. 445

Supreme Court of Alabama

June 30, 1920

Rehearing Denied Nov. 6, 1920

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Bill by Frances I. Irwin against J.M. Shoemaker and others to acquire title to land and to enjoin certain trespasses. From the decree rendered, complainant appeals. Affirmed.

Hybart Hare & Ratcliffe, of Monroeville, for appellant.

Hamilton & Page and J.S. Stearns, all of Evergreen, for appellees.

GARDNER J.

After the determination of this cause upon former appeal ( Irwin v. Shoemaker, 85 So. 269, present term), the bill was amended so as to seek injunctive relief against trespass in the cutting of timber and the operation of a sawmill by the respondent Shoemaker, together with an accounting for timber cut, and therefore complainant now seeks relief upon this theory alone.

That ejectment may be maintained for the recovery of timber standing and growing upon the land is not now controverted. Christopher v. Curtis-Attalla Lbr. Co., 175 Ala 484, 57 So. 837. The bill shows a dispute as to the title to this growing timber, and if the respondent was in actual possession of the land for removing the timber, then complainant's remedy at law was adequate and complete for it is settled in this state that such a proceeding as here attempted cannot take the place of an action in ejectment, thus invoking the jurisdiction of a court of chancery to decide in which party the title to realty resides. Driver v. New, 175 Ala. 655, 57 So. 437; Hamilton v. Brent Lbr. Co., 127 Ala. 78, 28 So. 698; Chappell v. Roberts, 140 Ala. 324, 37 So. 241.

Counsel for complainant insist, however, that no such possession of the timber has been shown which would authorize an ejectment suit and therefore the above authorities are without application, and reliance is had upon the cases of Long v. Nadawah Lbr. Co., 202 Ala. 523, 81 So. 25, and Christopher v. Curtis-Attalla Lbr. Co., 175 Ala. 484, 57 So. 837. These authorities are easily distinguishable from the present case, and, indeed, upon careful consideration thereof, support the conclusion that the respondent here was in such actual, open, and notorious possession of the timber on this land as would justify and call for an action of ejectment on the part of the complainant. In the Christopher Case, supra, approval is given to the finding of the Supreme Court of Minnesota in Bolland v. O'Neal, 81 Minn. 15, 83 N.W. 471, 83 Am.St.Rep. 362, where the facts as to the possession of timber land are very similar to those here in question; this court, in speaking of the Minnesota Case, saying:

"This actual possession, adverse to the general owner, was visibly evidenced by the establishment on the land of a large lumber camp to accommodate a hundred men and many horses, including barns, sleeping quarters, cookhouse, storehouse, office, and blacksmith shop. It appears, therefore, that there was an extensive and exclusive possession of the land for the patent purpose of removing the timber, as distinguished from a mere occasional entry and cutting as in the present case; and on such facts it would seem that the Minnesota court correctly ruled that there was such a possession of the timber as imported constructive notice of ownership."

Here the respondent is shown to have gone into possession under a contract purporting to give him the right to cut the timber, as well as the right of ingress and egress upon the land, together with a lease of the mill site. The establishment and operation of the mill and the cutting and removal of the timber continuously for a number of years is shown, together with the building of houses and the laying of a railroad over the tract, and, indeed, that he was in the actual possession of the land for the purpose of removing the timber. The fact that complainant was residing upon a portion of the lands and held deed to all of it, cultivating that which was susceptible of cultivation, is not inconsistent with the possession on the part of respondent of the timber land for the purpose of removing the timber. We think the insistence of counsel for complainant upon this point is sufficiently answered by what was said in the case of McMillan v. Aiken, 182 Ala. 303, 62 So. 519, as follows:

"It is impossible in the nature of things that two contending claimants can at one and the same time be in the actual possession of one and the same tract of land in such wise as to put upon both the burden of establishing their claims by suits at law. One or the other must hold the position of advantage. The decisions have spoken of a possession such as complainants claim by virtue of their color of title over the land south of Jessamine as actual. Where such possession is not ousted by an opposing possession in fact, it serves the purpose of an actual possession in cases of this character as well as in actions of ejectment, and doubtless that is what the decisions intend. It is nevertheless a fictional or notional possession; and, where reason and the facts so demand, it must be so treated."

We are of the opinion, therefore, that it clearly appears the respondent was in such actual possession as placed upon the complainant the duty of first instituting an action at law. This she has not done, and no excuse is offered either in the bill or proof for the failure to institute such suit.

Construing the bill most strongly against complainant, we think such possession sufficiently appears therein, and the demurrer taking the point was properly sustained. Freer v. Davis, 52 W.Va. 1, 43 S.E. 164, 59 L.R.A. 556, 94 Am.St.Rep. 895.

Ordinarily a temporary injunction, having been granted, will be continued in cases of this character until the parties have had a reasonable time in which to institute proceedings at law, and, failing to do so within a reasonable time and to diligently prosecute the same, the injunction will be dissolved. However, under the peculiar circumstances of this particular case, this rule will be without application. The contract shows that the time for the removal of the timber has expired, and it will not be assumed that the respondent is further attempting to exercise such rights after the expiration of the time allowed. The allowance of a temporary injunction until the prosecution of a suit at law is a matter of discretion on the part of the court that no injustice be done, and that the rights of the parties be protected, but will not be extended in a case of this character where it would appear that such an order would be fruitless and without any benefit. In the instant case there appears no necessity for a modification of the decree of the court below for this purpose. 22 Cyc. 1002. Justices SAYRE and BROWN, however, do not wish to commit themselves to this proposition, but agree that the injunction was properly dissolved upon the ground hereinafter stated.

Much is said by counsel for respondent in brief as well as answer upon the doctrine of equitable estoppel, but opposing counsel insist that as under the averments of the bill the contract was wholly void, equitable estoppel, in the absence of actual fraud on the part of the wife, is incapable of conferring any authority upon the grantee, citing Vansandt v. Weir, 109 Ala. 104, 19 So. 424, 32 L.R.A. 201; Wilder v Wilder, 89 Ala. 414, 7 So. 767, 9 L.R.A. 97, 18 Am.St.Rep. 130; Jackson v. Knox, 119...