Jefferson Davis County v. Simrall Lumber Co.

• Citation: 49 So. 611,94 Miss. 530
• Court: United States State Supreme Court of Mississippi
• Decision Date: 07 June 1909
• Parties: JEFFERSON DAVIS COUNTY v. SIMRALL LUMBER COMPANY

49 So. 611

94 Miss. 530

JEFFERSON DAVIS COUNTY v. SIMRALL LUMBER COMPANY

Supreme Court of Mississippi

June 7, 1909

March 1909

FROM the circuit court of Jefferson county, HON. ROBERT L BULLARD, Judge.

Jefferson Davis county, appellant, was plaintiff in the court below the lumber company, appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court.

The facts are stated in the opinion of the court.

Reversed and remanded.

Livingstone & Milling and J. O. Cowart, for appellant.

The testimony of appellee showed that they bought, cut manufactured into timber and sold the timber solely for commercial purposes, while the testimony of Tyrone, the real vendor, shows that he intended and still intends to denude the lands of all of the timber.

It is manifest from the evidence that the timber was bought and sold for commercial purposes and without any thought on the part of the buyers or sellers of putting the lands into immediate cultivation.

It was held in the case of Warren County v. Gans, 80 Miss. 81, 31 So. 539, that when the tenant cuts timber in the process of clearing the land for immediate cultivation, he can appropriate it or its profits to his own benefit, but could not cut the timber for sale without making himself amenable for waste. When the timber is cut by the tenant or others unnecessarily or unlawfully, the right of the reversioner or remainderman at once attaches, and he may bring an action on the case in the unture of waste for damages. Whether the tenant cut timber unnecessarily upon a claim of doing so for reasonable estovers or for the cultivation of the land and whether sufficient wood and timber were left for the permanent use of the inheritance are questions for the decision of the jury.

The fact that the appellees purchased the timber in controversy by warranty deed without limitation as to time in which to remove it made them tenants for years of the same and it was waste for them to cut the timber under any circumstances for commercial purposes.

For a history and complete exposition of the principles of law underlying this case we cite the following authorities; Learned v. Ogden, 80 Miss. 769, 32 So. 278; Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290; Warren County v. Gans, 80 Miss. 76, 31 So. 539.

Hathorn & Hearst, for appellee.

The declaration does not show nor does the evidence show that the county ordered or authorized the institution of this suit.

There is nothing in the record to show that the county had a right to bring this suit, that is, that it was the proper party to maintain this action, even though the defendants were guilty of waste; because there is nothing to show that the county had any interest or property rights in the remainder of the property in controversy.

The right to sue for damages in the nature of waste, which is the action here, in a court of law is enforcible only by the party holding the vested legal title to the reversion or the remainder of the estate for years.

In support of this doctrine we cite Tiedman on Real Property, 2d ed. sec. 81, 2; Kent's Commentaries, 9th ed. vol. 4, pp. 83-4; Enc. P. & P. vol. 22, p. 1096; Am. & Eng. Ency. Law. vol. 30, pp. 275-6, Adams Equity, p. 208; Am. Dig. vol. 48, p. 2127; Am. Dec. vol. 72, p. 721. And we especially call the the attention of the court to the case of Warren County v. Gans, 80 Miss. 76, 31 So. 539, as authority on this point and quote from the opinion in that case the following significant language: "When the timber is cut by the tenant or others unnecessarily or unlawfully, the right of the reversioner or remainderman at once attaches, and he may bring his action on the case in the nature of waste for his damages," etc. We also direct the attention of the court to the case of Moss Point Lumber Company v. Harrison County, 89 Miss. 448, 42 So. 290, especially to the learned opinion of Mr. Justice MAYES rendered therein, in which he quoted the opinion of the court in the Gans case, supra, literally and adopted it as a part of his opinion.

By the cession from the state of Georgia to the United States, April 24, 1802, the United States took title to a large area of land now comprising a part of the state of Mississippi, and in which territory the sixteenth section involved in this suit is located, and this sixteenth section was reserved as school lands for the use and benefit of the inhabitants of the township in which it is located. Hutchinson's Code, p. 55.

The supreme court of Mississippi in the case of Jones v. Madsion County, held that the United States, by the Georgia cession, took title to the sixteenth section lands as trustee, and that the state of Mississippi, upon its creation as a state, took the legal title to these sixteenth sections as trustees for the use and benefit of the inhabitants of the townships, each respectively, in which the sixteenth section is situated. Jones v. Madison County, 72 Miss. 777, 18 So. 87.

It follows then as surely as the night follows the day that the title to the reversion of the lands involved in this suit has always been and now is in the state of Mississippi as a trustee. The state is, therefore, the only party that has authority, as a matter of law to maintain this action.

But it may be contended by appellant that it is authorized by the state to maintain this action. In answer to this we say, first, that the state held this title as trustee and was bound by all the limitations that an individual would be bound by, and that the state of Mississippi, as trustee, could not delegate its authority to another. That is to say, the state, by reason of its sovereignty, took no greater rights or authority by a conveyance of property in trust than an individual trustee would have taken. Of course an individual trustee cannot delegate his power under a trust and we need cite no authority on this point. We do not think it necessary to argue this proposition at greater length; but we desire to call the attention of the court to the opinion of Chief Justice WHITFIELD, in the Moss Point Lumber Company case, cited supra, in which he took occasion to discuss at length and with great force the trust view of this subject.

The state of Mississippi, in keeping with its sacred trust, has never undertaken to authorize Jefferson Davis county to maintain this suit, and to substantiate this we invite the attention of the court to all the statutes and decisions applicable, so far as we know, in this case, and which we fear may have misled appellant in instituting this suit.

Code of 1906, was in force when this action was instituted. Section 4701 of the Code of 1906 provides in part as follows "The several counties wherein are situated any of such lands (meaning sixteenth sections) have, through their respective boards of supervisors, under the general supervision of the land commissioner, jurisdiction and control thereof," etc. The only authority conveyed to the supervisors in this section is conveyed in the words ...