J. J. Newman Lumber Co. v. Robertson

• Decision Date: 19 February 1923
• Docket Number: 22512
• Citation: 131 Miss. 739,95 So. 244
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. ROBERTSON, STATE REVENUE AGENT

95 So. 244

131 Miss. 739

J. J. NEWMAN LUMBER CO. v. ROBERTSON, STATE REVENUE AGENT

No. 22512

Supreme Court of Mississippi

February 19, 1923

1. PUBLIC LANDS. Sale of timber on school section held not unconstitutional.

Where a board of supervisors sell the timber on a school section of land in accordance with section 4702, Code of 1906, section 7512, Hemingway's Code, and grant the purchaser fifteen years within which to cut and remove the timber as a reasonable time for doing so, this sale is not invalid under section 211 of the Constitution of 1890.

2. PUBLIC LANDS. Reasonable time for purchaser to remove timber from school lands is not in excess of twenty-five years. Under this section of the Constitution, since the maximum time therein provided within which the board of supervisors can lease a sixteenth section is twenty-five years, within this limit of twenty-five years they have a right to decide that a reasonable time for a purchaser to remove the timber is any time not in excess of the twenty-five years.

3. PUBLIC LANDS. Board of supervisors have a right to convey to purchaser of school lands right to cut remaining timber in one year after expiration of time within which to remove it.

A few months before the expiration of the time granted a purchaser within which to cut and remove the timber from a sixteenth section, the board of supervisors had a right to sell and convey to this purchaser the right to cut and remove the timber remaining uncut by him at the expiration of the time limit of his first deed, all timber remaining uncut by, him at that time, and to grant him one year within which to cut and remove and exercise all other privileges granted him in his original deed, when this is done in good faith and for a valuable consideration.

Ethridge J., dissenting.

HON. G WOOD MAGEE, Special Judge.

APPEAL from circuit court of Jefferson Davis county, HON. G. WOOD MAGEE, Special Judge.

Suit by Stokes V. Robertson, State Revenue Agent, against the J. J Newman Lumber Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Cause reversed and remanded.

S. E. Travis and Luther Hennington, Brady, Dean & Hobbs, for appellant.

F. C. Hathorn and E. B. Williams, for appellee.

SYKES J. ETHRIDGE, J., dissenting.

OPINION

SYKES, J.

The state revenue agent instituted this suit to recover from the appellant (defendant) for the value of timber cut by appellant from a sixteenth or school section of land in Jefferson Davis county. Under a peremptory instruction in favor of the plaintiff the jury returned a verdict for the Value of all timber cut from this section by the defendant. Upon which verdict a judgment for something over eighty thousand dollars was rendered in the circuit court, and from which judgment this appeal is prosecuted.

The material averments of the declaration necessary to be here stated are as follows: This section of land has never been leased for agricultural purposes. Before the sale of the timber hereinafter stated, it was covered with a dense forest principally of pine trees; that on January 5, 1903, the board of supervisors undertook to sell to G. L. Hawkins, for a cash consideration of four thousand three hundred dollars, the merchantable pine timber and wood on this section, and granted in this deed to Hawkins a term of 15 years within which to cut and remove the timber from the section (which deed also granted him any rights of ingress and egress and certain other privileges necessary for the purpose of cutting and removing the timber from the land). The authority under which the board made this sale was chapter 41, Laws of 1898; section 4702, Code of 1906; section 7512, Hemingway's Code. Through mesne conveyances from Hawkins this appellant claims title. The declaration is in two counts. In the first count it is alleged that since this sale of timber was made for a gross amount, the maximum period of time the board of supervisors could have allowed for its cutting and removing was a period of ten years under section 211 of the Constitution; that the timber sold under this contract was not cut within this ten years; and that the title thereto before its cutting had revested in the state. It is further alleged that a few months before the expiration of the fifteen years to cut and remove granted in the Hawkins deed, for a consideration of two hundred dollars the board granted an extension of time of one year to the appellant to cut and remove this timber; which grant was void. The second count alleged that the appellant cut and removed timber not covered by his contract and sought a recovery of its value.

It is unnecessary to refer in detail to the pleas filed in the court below by the defendant. Neither is it necessary on this appeal to consider the admissibility of the testimony under which the plaintiff sought to show the number of trees cut. Neither is it necessary to set out in full the deed of the president of the board of supervisors to Hawkins. Suffice it to say about this deed that it was properly drawn, stated a valuable consideration, and granted a term of fifteen years for cutting and removing the timber. It becomes important, however, to set out in full the order of the board of supervisors relating to the second instrument, whether it be an extension or a conveyance, and also the instrument executed in pursuance of this order by the president of the board. This order is as follows:

"Whereas, Nicholas Manufacturing Company, a corporation under the laws of the state of New Jersey, is now the owner of all the merchantable pine timber and pine wood on that land in Jefferson Davis county, Mississippi, to-wit, all of section sixteen, in township six, north range eighteen west, together with certain rights of way on said land with the right to enter and cut and remove said pine timber at any time prior to January 5, 1918; and, whereas, said Nicholas Manufacturing Company fears that it may not be able to cut and remove said pine timber within said period and has offered to pay the sum of two hundred dollars for an extension of one year of its right to cut and remove its said timber and pine wood from said land and for its other rights with reference to said timber and wood and land; and, whereas, the board of supervisors of Jefferson Davis county feels that one year's additional time asked for is reasonable and that said sum of two hundred dollars so offered by said Nichols Manufacturing Company is a fair and reasonable consideration for such extension so asked by said Nicholas Manufacturing Company: Now, therefore, it is hereby resolved by this board that the president of this board of supervisors be and he is hereby authorized and directed to execute an extension of one year to said Nicholas Manufacturing Company for the cutting and removing of said timber and pine wood and of the other rights now owned by the said Nicholas Manufacturing Company with reference thereto, same to be executed in the name of the board of supervisors of Jefferson Davis county, by T. W. Carraway, president thereof, for the consideration of two hundred dollars cash.

"Ordered and adjudged this August 28, 1917."

Upon this order the president of the board executed this instrument:

"State of Mississippi, Jefferson Davis County.

"In consideration of the sum of two hundred dollars in cash, the receipt whereof is hereby acknowledged, and in pursuance of an order of the board of supervisors of said county of this date so authorizing and directing, I, the undersigned, T. W. Carraway, president of the board of supervisors of Jefferson Davis county, Mississippi, do hereby, for and on behalf of said board and in the name thereof, sell and convey unto Nicholas Manufacturing Company, a corporation under the laws of the state of New Jersey, it being the present owner of all the merchantable pine timber and pine wood on all of section 16, township 6, north of range 18 west, Jefferson Davis county, Mississippi, with the right to cut and remove same at any time prior to January 5, 1918, an extension of one year's time in which to cut and remove said timber and pine wood from said land, and to exercise its other rights with reference thereto, so that all its rights now owned with reference to said timber and wood shall expire on January 5, 1919.

"In testimony whereof, I have caused this instrument to be executed in the name of said board by me as president for and on behalf of the board of supervisors of said county, and as its act and deed. This August 28, 1917. Board of Supervisors, Jefferson Davis County, Mississippi, by T. W. Carraway, President."

It is the contention of the appellee that the court was correct in granting him a peremptory instruction for the reason that the longest length of time for which a school section may be leased for a lump sum is ten years as provided in section 211 of the Constitution; that a sale of the timber burdens the land with the growth and support of the timber and to that extent is in reality a lease of that part of the section burdened with this growth and support, and under this section of the Constitution where the sale is for a gross sum the board is limited to this ten-year period.

It is the contention of the appellant that section 211 only deals with the leasing of the land and has nothing to do with the sale of the timber or the time granted by the board for the removal of it; consequently, that the board of supervisors in good faith have a right to grant a vendee of timber upon a school section whatever time in their judgment is a reasonable time for the cutting and removing of the timber.

Both parties rely for their respective contentions upon the opinion of the court in the case of Dantzler Lumber Co. v. State, 97 Miss. 355, 53...