Lodwick Lumber Co. v. Taylor

• Citation: 98 S.W. 238
• Parties: LODWICK LUMBER CO. v. TAYLOR.
• Decision Date: 19 December 1906
• Court: Supreme Court of Texas

98 S.W. 238

LODWICK LUMBER CO. v. TAYLOR.

Supreme Court of Texas.

December 19, 1906.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by R. W. Taylor against the Lodwick Lumber Company. From a judgment

for plaintiff, defendant appealed to the Court of Civil Appeals, which certifies questions for the determination of the Supreme Court. Questions answered in favor of defendant.

F. H. Prendergast, for plaintiff in error. Harrison, Davidson & Scott, for defendant in error.

WILLIAMS, J.

Certified questions from the Court of Civil Appeals for the Fifth District as follows: "In the above-entitled cause the following issues of law arise, which this court deems it advisable to present to the Supreme Court of the state of Texas for adjudication: Statement. On July 10, 1905, Taylor filed amended petition in the county court of Harrison county against Lodwick Lumber Company, and recovered judgment on July 19, 1905, for $175, and defendant appealed. The suit was for the value of timber cut from Taylor's land by the lumber company. On March 1, 1893, G. W. Morris was the owner of 96 acres of land in Harrison county, Tex., being described in the petition, and on that day deeded the timber on the land to the Hope Lumber Company. The deed was as follows, in consideration of the sum of $100 to him paid: `I have bargained, sold and released unto the Hope Lumber Company, heirs and assigns, forever, in fee simple, the following described tract or parcel of land, to wit: All the timber on the ninety-six acres (being the land described in plaintiff's petition); and I do hereby bind myself, heirs and legal representatives to warrant and forever defend, all and singular, the title to the above-mentioned premises unto the said Hope Lumber Company, heirs and assigns, against every person or persons whomsoever lawfully claiming, or to claim, the same, or any part thereof.' The Hope Lumber Company failed in 1895 or 1896, and J. H. Inman, of New York, became the owner of its interest. Inman died, and his executors sold to D. H. Scott and S. P. Jones, and they sold to the Commercial Lumber Company in 1901, and that company, sold to appellant in December, 1903. The appellant company, without Taylor's consent, entered upon the land and cut and removed the timber in March, 1904, more than 10 years after the timber was sold by Morris. The title to the land passed from G. W. Morris by mesne conveyance to R. W. Taylor, appellee, who owned the land when the timber was cut and removed. At a former day of this term we affirmed the judgment of the trial court. The cause is pending on a motion for rehearing. The appellant has filed a motion requesting us to certify the case to the Supreme Court. The questions involved are of first impression in this state. This being so, and the appeal being from the county court, and the Supreme Court not having jurisdiction to review the case on writ of error, we deem it proper to certify the questions involved to the Honorable Supreme Court for determination. Question 1: Did the title of the timber not removed from the land within a reasonable time revert to the owner of the soil? Question 2: Does the Lodwick Lumber Company owe Taylor for the value of the timber cut and removed without his consent after the...