King v. Campbell

• Decision Date: 25 January 1898
• Citation: 85 F. 814
• Parties: KING v. CAMPBELL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

85 F. 814

KING v. CAMPBELL et al.

United States Circuit Court, W.D. Virginia.

January 25, 1898

Maynard F. Stiles, for complainant.

Burns &amp Ayres, for defendants.

PAUL District Judge.

In this cause, on the 8th day of November, 1897, the plaintiff filed his bill, alleging that he is the owner in fee, and in actual possession, of a tract of land commonly known as the 'Robert Morris 500,000-acre grant,' located partly in Buchanan county, Va., and partly in the states of Kentucky and West Virginia. He traces title to said tract of land from a grant to Robert Morris by the commonwealth of Virginia dated June 23, 1795 through successive transfers to himself, and files with his bill a plat and resurvey of said land, which he alleges was made in pursuance of an order of this court in another case and of an order of the circuit court for the district of West Virginia in a case pending in that court. The bill further alleges that the title of complainant, as set out, has been sustained and established in successive actions of ejectment in this court and in the circuit court for the district of West Virginia. The bill further alleges that said tract of land is wild and mountainous and heavily timbered with a valuable growth of poplar, oak, walnut, and other valuable trees, which constitute the principal and almost sole value of said land, the same being practically worthless for agricultural, grazing, and other like purposes, and is wholly worthless for such purposes to your orator, and thus unsalable therefor; and the portion of said land which is situated in said district was purchased by your orator solely on account of the timber aforesaid, and for the purpose of cutting, manufacturing, and marketing the same, and employing your orator's capital therein and securing the profits derivable therefrom. That that portion of said tract of land which lies within the state of Virginia is bounded on the western side by the state of Kentucky, and on the northern and eastern sides by the state of West Virginia, towards which states all the creeks and streams flow, which from the natural and only roadways to and from said land, and the timber upon said land can only be practically removed therefrom to the markets therefor by hauling or floating the same out of the state of Virginia, and into the state of Kentucky or West Virginia; and the said creeks, especially Knox creek and its tributaries, and a wagon road leading therefrom down Bull creek, in West Virginia, to the Norfolk & Western Railroad, furnish ready means and facilities for the removal of timber from said lands. That said Campbell wrongfully and unlawfully, and against your orator's protest, has set a large force of men at work upon that portion of said land statute in said Buchanan county, cutting down your orator's timber, and has cut down a large quantity thereof, and is threatening to continue so to do, and, unless restrained by this court, will, as your orator believes and avers, continue to cut, and will remove and dispose of and put beyond the jurisdiction of this court, great quantities of your orator's said timber. That the cutting and removal of the said timber is, in effect, the removal and destruction of the substance of your orator's said land, and is the destruction of the said land in the character and for the purposes for which your orator purchased and has held the same, and is an irreparable injury to your orator and his said land. That said Campbell claims and pretends to have purchased a portion of said land amounting to some 3,000 or 4,000 acres from one J. N. Watkins, who some time theretofore claimed to be the owner thereof, but your orator avers that said Watkins had not at any time any title or valid claim thereto, interest therein, or possession or right of possession thereof, and no right, title, or interest passed to or was acquired by said Campbell by virtue of said pretended purchase and conveyance, or otherwise, and he has no right or title to said land, or to any part thereof, but said pretended purchase was and is void, and a part thereof, but said pretended purchase was and is void, and a fraud upon your orator's rights. That, long before said pretended purchase by said Campbell from said Watkins, your orator had, because of the claim of ownership of said Watkins, brought an action against said Watkins and others on the law side of this court to determine said claim of title, and the same now is, and at the time of said pretended purchase was, pending in this court at Abingdon, under the title of 'Henry C. King v. Joshua Justus et al.,' which fact was well known to said Campbell at the time of said pretended purchase and long prior thereto. The bill further alleges that long before said Campbell began the cutting of timber herein complained of, and before the completion of said pretended purchase by him, said Campbell met Maynard F. Stiles, one of your orator's solicitors, on one of the Norfolk & Western Railroad trains near Williamson, W. Va., and informed said solicitor of his (the said Campbell's) intention to make said purchase, which was then pending, and to cut and remove the timber upon said land, and said solicitor then and there earnestly counseled said Campbell not to make said purchase, for that the said land was not the land of said Watkins, or of any other, but only of your orator, and notified said Campbell of the said action against said Watkins, whereof said Campbell was then and theretofore cognizant, and protested against the proposed cutting of any timber upon said land, and notified the said Campbell that should he, the said Campbell, embark in the enterprise of cutting said timber, your orator would apply to this court for injunction to restrain the same. That at the time last aforesaid said Campbell suggested to said solicitor that he might purchase of your orator the land claimed as aforesaid by said Watkins, or in some manner compromise said claim; whereupon said solicitor expressed his willingness to submit to your orator any proposition said Campbell might make, and his doubt of the acceptance of any such proposition as said Campbell would make, and none was made. That afterwards said solicitor, being informed that said Campbell still contemplated and was planning the aforesaid trespass upon your orator's said land, sent to him by the United States mail a letter protesting against the cutting of said timber, a copy of which letter is hereto annexed, marked 'Exhibit No. 12.' Said letter was inclosed in a stamped envelope, having the writer's return address, and was never returned. The letter filed is as follows:

'Charleston, W. Va., Sept. 3d, 1897.

'Andrew W. Campbell, Esq., Hurley P. O., Va.-- Dear Sir: Reports reach me to the effect that you are preparing to cut the timber on the lands that you recently purchased from J. N. Watkins and to put a large force of men in for that purpose. I understand, also, that you have stated that you had compromised with Mr. King, or had secured his permission to cut this timber. This, of course, you know is not true, and has no possible basis whatever, and I do not credit this last report. I wish to reiterate to you what I stated in my conversation with you upon the train some weeks ago, to the effect that Mr. King claims and owns this land as part of the Morris 500,000-acre grant, and that Mr. Watkins had not, nor have you, any title whatever thereto, and that long prior to your pretended purchase an action of ejectment was brought against Mr. Watkins, and an injunction secured against him and the other parties to the suit, prohibiting them from cutting timber on this grant. Of this you confessedly had full knowledge when you went into this matter, and purchased the lawsuit with your pretended deed for the land, and title to the lawsuit is the only title that passed by the deed. You have thrust yourself voluntarily into this matter, knowing the land to belong to Mr. King, and to be in litigation, and are entitled to no indulgence or consideration whatever from the court. Of this you have been aware from the very beginning. These facts, however, I desire to emphasize to you, and impress upon you that if it is possible, through the court, to prevent your cutting or removing any timber from the land, or to make you answer in contempt for violating the existing injunction, if you do cut it, Mr. King will make every effort to that end. All of Pawpaw creek and all the waters of Knox creek westward, across the state line to Peter creek, is a part of the Morris grant, as you have long been advised, and all that portion thereof in Virginia is involved in the aforesaid suit. I trust that the report that you are preparing to cut this timber is not true, but, lest it may be, I hasten to give you further warning not to meddle with the same.

'Very truly, M. F. Stiles, Attorney for H. C. King.

'(Dictated.)'

The prayer of the bill is that the defendants be restrained from further cutting timber on the lands, and from removing or...