Jones v. Atl. Coast Dumber Corp.

• Decision Date: 17 September 1912
• Parties: JONES . v. ATLANTIC COAST DUMBER CORPORATION et al.
• Court: South Carolina Supreme Court

75 S.E. 698

(92 S.C. 418)

JONES .

v.ATLANTIC COAST DUMBER CORPORATION et al.

Supreme Court of South Carolina.

Sept. 17, 1912.

1. Logs and Logging (§ 3^*) — Sales of Standing Timber—Failure to Cut—Estoppel.

Where a timber deed also conveyed to the grantee a right of way for a tramroad and a permanent road, the cutting of timber for the purpose of laying the tramroad was not a commencement of cutting on the timber contract; and the grantor, by failing to object to such cutting, or by participating therein, was not estopped to claim that by delay the grantee's rights under the timber contract had been lost.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]

2 Injunction (§ 136*)—Temporary Injunction—Application—Questions Determinable.

In an action by a grantor of timber, who also conveyed to the grantee a right of way, to enjoin the cutting of timber, on the ground that the grantee had lost his rights by delay, where, on motion for a temporary injunction, the grantee showed that cutting had been commenced and that, notwithstanding the delay, the grantor had acquiesced and participated therein, while the grantor presented affidavits to show that such cutting was not under the timber contract, but for the purposes of the right of way, a question of fact was presented which should be determined on the trial, and which did not justify the denial of the injunction, since, in an action for an injunction, where a temporary injunction is essential to the preservation of a legal right, if established as alleged in the complaint, it is error to refuse the temporary injunction.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.*]

3. Appeal and Error (§ 193*)—Necessity of Presentation of Questions Below.

An order granting a temporary injunction will not be reversed on the ground that the complaint is insufficient, where defendant did not question its sufficiency in the trial court, but merely moved to make it more definite and certain.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1240; Dec. Dig. § 193.*]

4. Injunction (§ 118*)—Sales of Standing Timber — Actions on Contract — Complaint.

In an action to enjoin the cutting of timber, a complaint, alleging the making of a contract for the sale of the timber, the date and consideration thereof, the number of acres of timber, that more than 13 years had elapsed, and that the grantor had forfeited his rights by not cutting the timber within a reasonable time was sufficiently definite and certain as to the facts and circumstances upon which plaintiff based his conclusion that a reasonable time for cutting the timber had expired, since it was sufficient to open the door to proof of the facts and circumstances surrounding the parties when the contract was made.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]

5. Pleading (§ 11*)—Form of Allegations-Ultimate and Fiduciary Facts.

While a complaint must contain a statement of the facts constituting the cause of action, it need allege only the ultimate and not the evidentiary facts.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 31; Dec. Dig. § 11.*]

6. Pleading (§ 8*)—Form of Allegations-Facts or Conclusions.

An allegation of a mere conclusion of law is insufficient to raise an issue.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 12-28 1/2; Dec. Dig. § 8.*]

Appeal from Common Pleas Circuit Court of Marion County; J. W. G. Shipp, Judge.

Action by J. W. Jones against the Atlantic Coast Lumber Corporation and another. From orders granting a temporary injunction and denying defendants' motion to make the complaint more definite and certain, the defendant named appeals. Affirmed.

Willcox & Willcox, of Florence, and M. C. Woods, of Marion, for appellant.

Mullins & Hughes and Henry Buck, all of Marion, for respondent

FRASER, J. This is an action for injunction and damages. The complaint alleges that on the 7th day of January, 1899, the plaintiff's grantor, David J. Atkinson, executed and delivered to one R. L. Montague a certain instrument of writing, styled and known as a "Deed and Contract, " and commonly called a "Timber Deed, " bearing date on said day, whereby he purported to sell and convey unto the said R. L. Montague all the timber of every kind and description to 12 inches stump diameter and upwards, 12 inches from the ground at the time of cutting, then standing and being upon a certain tract of land, the tract of land described in the complaint, together with certain timber rights, rights of way, privileges, and easements therein more specifically set forth, all of which will more fully appear by reference to said deed, a copy of which was thereto attached and thereby made a part of the complaint. That thereafter, by sundry mesne conveyances, the rights, etc., of said R. L. Montague were acquired by the defendant, Atlantic Coast Lumber Corporation. That at the time the said deed was executed and delivered it. was the intention of the parties that the grantee should at once, or within a reasonable time, commence to cut and remove the said timber, and continue without cessation until said timber should have been cut and removed. No time was fixed in the deed tocommence. That, although a period of more than 12 years to wit, nearly 13 years, has elapsed and expired, neither the grantee nor his assigns had commenced the cutting and removal of said timber until the 20th of September, 1911. That a reasonable time for cutting and removing of said timber had expired long before said last-mentioned date. The plaintiff asked for an injunction against the defendants and for damages for the timber cut. After the service of the complaint, the plaintiff moved for and obtained an injunction pendente lite, and the defendant moved for order making the complaint...