Ladnier v. Ingram Day Lumber Co.

• Citation: 135 Miss. 632,100 So. 369
• Decision Date: 19 May 1924
• Docket Number: 23859
• Court: Mississippi Supreme Court
• Parties: LADNIER v. INGRAM DAY LUMBER CO. [*]

100 So. 369

135 Miss. 632

LADNIER v. INGRAM DAY LUMBER CO. ^[*]

No. 23859

Supreme Court of Mississippi

May 19, 1924

Division A

APPEAL from chancery court of Harrison county, HON V. A. GRIFFITH, Chancellor.

Suit by Clozelle Ladnier against the Ingram Day Lumber Company. From a decree awarding him insufficient relief, complainant appeals. Reversed and judgment rendered.

Decree reversed.

T. M Evans, for appellant.

The court erred in not granting the injunction prayed for on the final hearing against the defendants jointly and severally enjoining them jointly and severally from working the said timber for turpentine.

"The term land embraces not only the soil but its natural produce growing upon and affixed to it. Such things, being the natural product of the land, or part and parcel of it, therefore pass by a grant of the land. Shep. Toughs. 91. Being naturally affixed to it, they are not distinguishable from it, until actually severed. Jones v. Flint, 10 Adolph. and Ellis 753. Hence growing trees were not the subject of larceny at common law (4 Bl. Comm. 232), and they descend to the heir, and do not go to the executor; and even the tenant for life has no right to cut them down." 2 Bl. Comm. 122.

"When the statute speaks of 'lands, tenements, and hereditaments,' it must be understood to refer to them, in such sense as the terms imported at common law; and, according to the principles above stated, growing trees must be considered as pertaining to the soil and embraced by the terms of the statute. This view has been sanctioned by many well-considered cases. Teal v. Auty, 2 Brod. & Bring. 99; Crosby v. Wadsworth, 6 East, 602; Jones v. Flint, 10 Adolph & Ellis, 753; Green v. Armstrong, 1 Denio, 550; Bank of Lansingburg v. Crary, 1 Barb. 542; Putney v. Day, 6 New Hampshire, 630; Scorell v. Boxall, 1 Y. & J. 396; Pierrepont v. Barnard, 5 Barb. 364." Fox v. Lumber Co., 80 Miss. 6.

In the case of Zirkle v. Allison, 126 Va. 701, 101 S.E. 59, 15 Am. Law Rep. Ann. 40, the court says: "These cases undoubtedly settle the proposition in Virginia that, under timber contracts which require the timber to be cut and removed by a specified time, the title never passes out of the grantor until the grantee cuts and removes it within the period of time specified in the contract for so doing; not that there is a forfeiture by the grantee of the timber remaining uncut or unremoved after the time limit, but because it has never become his property, for there is an express condition precedent in the contract itself that precludes the passing of the title from the grantor to him."

The same rule applies in the case of Clark v. Gust, 54 Ohio St. 298, 15 Am. L. Rep. 77; Pease v. Gibson, 6 Maine 81, 15 Am. L. Rep. 78; Blackstone Mfg. Co. v. Allen, 117 Va. 452, 15 Am. L. Rep. 32; 116 Va. 530. Mallett v. Doherty, 15 Am. L. Rep. 19 to 22, 180 Cal. 225; Williams v. McCarty, 15 Am. L. Rep. 9 to 18; 82 W.Va. 158.

These decisions have been followed in Mississippi beginning with Hall v. Eastman-Gardner, 89 Miss. 608, 609; Clark v. Ingram-Day, 90 Miss. 488, 489; Hand v. Fillingame, 92 Miss. 185; Rowan v. Carlton, 100 Miss. 183, 184, 185. Under all the authorities that we are able to find, except Alabama, Georgia and perhaps Tennessee, the law as laid down in the foregoing opinion is adopted in every state in the union.

White & Ford, for appellee.

The permanent injunction is purely an afterthought on the part of appellant. It was not urged below. There is not necessity for it. It is not shown the timber is being worked for turpentine and in fact it was not being worked at the time of the trial and hasn't since been. As to cutting of the trees, when Ingram Day Lumber Company comes to cut the trees, should it then cut anything not covered by its deed, that will be time enough for an injunction. The bill does not allege the parties are insolvent. Why issue an injunction when there is nothing to enjoin. There is no proof that an injunction is necessary.

It will be noted that recovery in this case, almost entirely, rests on fictional or imaginary damages alleged to have been sustained by appellant. For any turpentine removed, not belonging to appellee, full recovery has been allowed. Damages were allowed him for the going on to the land, when in the nature of things such damage is unsubstantial. He also has been allowed punitive damages for such going on the land. The chancellor found no tree was "boxed," and if any had been "boxed," still under the facts he finds it would not be a case for the application of the statutory penalty. There was no proof of the value of any pine straw or tops of trees or that appellees had taken or removed any. The chancellor has followed prior decisions of this court in each element of damage allowed. Appellees have not appealed

T. M. Evans, for appellant, in reply.

Counsel for the appellee insists that appellant is not entitled to an injunction because it is not alleged in the bill of complaint that the defendants are insolvent. We can see that in a suit asking for a preliminary or interlocutory or temporary injunction, in enjoining the trespass, pending the final hearing, that it would be necessary to allege insolvency. But, it is never necessary to allege insolvency in order to secure an injunction against a continuing or repeated trespass upon the final hearing of a cause.

The bill of complaint in this case alleges that this timber was leased by the defendant Ingram Day Lumber Company to the defendant Hagan, for three years at ten cents per tree a year and the answer admits it. It is true that on the hearing of this case in the winter there was no turpentine work being done; but the defendant Hagan had a three-year lease, two years to expire, and the court held that he had no right to do the work. The bill of complaint also alleges that the defendant Ingram Day Lumber Company threatened to cut and haul every tree that has been boxed for turpentine from the land, top, limbs, and everything; and unless restrained by injunction will do so, and the answer admits it. This would be a continued trespass and on the final hearing of the cause the appellant was entitled to a permanent injunction against the Ingram Day Lumber Company restraining them from cutting and removing anything but saw log timber from the land, if any. There is abundance of evidence that tops, limbs and pine straw have never been recognized as saw log timber, and that from time immemorial it has been the custom to cut the saw log from the tree to be carried to the mill and manufactured into lumber, leaving stumps, tops, limbs, etc., on the ground for domestic purposes of the owner.

Argued orally by T. M. Evans, for appellant, and W. H. White, for appellee.

OPINION

SMITH, C. J.

The appellant brought this suit against the Ingram Day Lumber Company and E. Hagan alleging that without his consent they had boxed and were continuing to box for turpentine a large number of pine trees growing on his land, and prayed for damages therefor and for an injunction restraining the company and Hagan from continuing their alleged trespasses on his land. The boxing of the trees and the appellant's ownership of the land were admitted by the appellees, defendants below, who in justification thereof rely upon a deed executed by the appellant's grantor prior to his purchase of the land to the Gulf Coast Lumber Company reciting that:

"For and in consideration of the sum of six hundred dollars ($ 600) cash in hand paid the receipt of which is hereby acknowledged, we hereby sell, convey, and warrant unto the Gulf Coast Lumber Company, a corporation chartered under the laws of the state of Mississippi, its successors and assigns, all the saw log timber on the following described lands, to-wit: North one-half of North East quarter, South East quarter of North East quarter and North East quarter of South East quarter of section 5, Township 6, Range 13 west, situated in Harrison county, state of Mississippi.

"The said Gulf Coast Lumber Company, its successors and assigns, to have a period of twenty (20) years in which to cut and remove said timber on the above-described lands."

A deed to the trees was afterwards executed by the Gulf Coast Lumber Company to the Ingram Day Lumber Company with whose consent for a consideration the trees were boxed by Hagan.

When the cause came on to be heard, the court below permitted the introduction of evidence as to the size of trees that would constitute saw log timber at the date of the sale by the appellant's grantor thereof to the Gulf Coast Lumber Company and held therefrom that a tree measuring eight inches in diameter fifteen inches from the ground would answer such description. And also held on the evidence that between the date of the sale thereof and the time they were boxed by the appellees the trees had grown two inches in diameter, so that all trees boxed by the appellees ten inches or more in diameter fifteen inches from the ground were embraced within the Gulf Coast Lumber Company contract. The cause was then referred to a master with instructions to ascertain the number of trees boxed by the appellees less than ten inches in diameter fifteen inches from the ground and to report the damage sustained by the appellant by reason thereof.

The master reported the boxing by the appellees of three hundred and fifty-nine trees less than ten inches in diameter fifteen inches from the ground, resulting in the damage to the appellant of one hundred and eighteen dollars and eighty-three cents and that he should be allowed in addition thereto four hundred and ninety-six dollars and forty-nine cents punitive damages, making a total of six hundred and fifteen dollars and thirty-two cents and there was a decree...