Louis Werner Sawmill Company v. Sessoms

• Decision Date: 12 July 1915
• Docket Number: 116
• Citation: 179 S.W. 185,120 Ark. 105
• Parties: LOUIS WERNER SAWMILL COMPANY v. SESSOMS
• Court: Arkansas Supreme Court

179 S.W. 185

120 Ark. 105

LOUIS WERNER SAWMILL COMPANY v. SESSOMS

No. 116

Supreme Court of Arkansas

July 12, 1915

Appeal from Union Chancery Court; James M. Barker, Chancellor affirmed.

Decree affirmed.

Gaughan & Sifford, Aylmer Flenniken and Neill C. Marsh, for appellant.

1. The time granted in the deeds of July, 1907, for cutting the timber had not expired by the express terms of the deeds as written, at the time of filing these suits. The extension deed complained of conveyed to appellant "its lawful successors and assigns forever, all of the pine timber over twelve inches in diameter at the stump standing, growing and being on said lands." The right to convey the timber is not left to inference, but expressly granted in the deed itself, and if effect is given to the granting clause, which must be done to give the deed any effect at all, appellant Werner company, had the right to convey the timber to the Edgar Lumber Company with such time to cut and remove it as was granted in the extension deed. 99 Ark. 112. This court in the case just cited lays down the rule as to proper expedition as follows: "Take into consideration the location of the land, its accessibility, the character and quantity of the timber thereon, the seasonableness of the weather, the facilities for cutting and removing the timber and all other conditions and circumstances which might affect the cutting and removal thereof." It can not be said that the Edgar Lumber Company was only given such time as it would have required appellant, Werner company, proceeding with expedition and dispatch, to cut and remove the timber. To put such a construction upon the deed would directly contravene the granting clause thereof, and would be placing a limitation upon its right to convey and upon the rights of its successors or assigns, not contemplated in the deed, and would be importing into the deed itself a condition which its terms do not imply.

This court has said that appellants could not be expected to extend their railroads and use all of their facilities to reach these lands as soon as they might possibly have been reached after the conveyance of the timber to them, without regard to the expense incident to doing so and the consideration of the removal of their other timber nearer to the mills and more accessible, and the best and most practicable method for reaching it with proper dispatch and expeditiously cutting and removing it all. Burbridge v Arkansas Lumber Co. et al., 118 Ark. 94.

It is in evidence that the Werner company at the time of the exchange had other timber contracts that were expiring. This is one of the "circumstances and conditions which affect the cutting and removal" of the timber, and these must be taken into consideration, as well as the circumstances of it being impossible for the Werner company to secure a right-of-way across certain lands, and the fact that, having no right of eminent domain, it could not condemn a right-of-way for its spur tracks across said lands. These facts are to be considered in connection with the location of the land, its accessibility, the character and quantity of the timber thereon, and the facilities obtainable for cutting and removing the timber. Supra; 77 Ark. 12; 99 Ark. 112.

The burden was on appellees to show that the Edgar Lumber Company had not proceeded with proper dispatch, yet the proof is uncontradicted that every day, since its acquisition in July, 1907, it has been steadily cutting and extending its roads and moving its camps and logging operations directly toward the timber in controversy, with the exception of the eighteen months that it was forced to go to Louisiana in order to save forty million feet of timber in that territory, which it had a right to do. Supra.

2. The timber deeds involved should be reformed. The subject-matter of the sale was time, and the amount of time agreed upon was fifteen years. The mistake in the deed was in describing the thing bought and sold, the time. The mistake in these deeds was one of fact, and not of law, but the authorities are overwhelming to the effect that a mutual mistake whether of law or fact will be corrected. 51 Ark. 394; 98 Ark. 14; 11 N.Y. 591; 28 L. R. A. (N. S.) 785; Id. 844; Id. 882. The proof shows decisively, clearly and beyond all reasonable controversy that the language used in the timber deeds describing the time for removal, fails to express the contract between the parties. 64 Conn. 28, 29 A. 133; 125 Ga. 699, 28 L. R. A. (N. S.) 785; 59 Ia. 359; 13 N.W. 323; 55 Ia. 484, 8 N.W. 322; 64 Ala. 468; 28 L. R. A. (N. S.) 791, note; 67 N.Y. 283.

H. S. Powell, for appellees.

1. He who comes into a court of equity, seeking equitable relief, must come ready to do equity and with clean hands. The overwhelming weight of the testimony shows that the appellees were misled to their damage by the misrepresentations and concealments of the representation of the appellant, Werner company. 108 U.S. 218; 5 How. (U.S.) 192; 19 Wall. (U.S.) 254; 1 Id. 518; 12 Pet. (U.S.) 178; 16 Cyc. 144, and cases cited; 7 Ark. 516; 53 Ark. 150; 47 Ark. 311; 38 S.E. 181; 46 S.E. 371; 88 F. 160; 69 N.E. 614; 76 N.W. 591; 46 N.Y. 615.

2. Within a few days after the execution of the deeds of July, 1907, the Werner company conveyed to the Edgar Lumber Company all its right, title and interest to the timber in controversy. The Werner company is, therefore, not a party at interest and is without right to ask for a reformation of these timber deeds. The Edgar company took with notice of all conditions imposed by these deeds, which were placed on record immediately after they were executed, and were constructive notice to the latter company. No privity of contract exists between the defendants and the Edgar company knew nothing about the alleged mutual mistake, and is not entitled to ask for a reformation. 105 Ark. 459; 33 Ark. 125; 89 Ark. 259; 34 Cyc. 950; Story, Eq. Jur., § 165; 74 Ark. 336.

3. If the appellant, Werner Sawmill Company, be treated as a proper party and as having qualified itself to ask relief in a court of chancery, still it is not entitled to the relief prayed for.

A court of chancery is without power to grant a reformation, where the mistake, if any, is unilateral. The evidence here shows that the mistake in inserting the objectionable clause in the deeds was solely that of appellant, and is not a case of mutual mistake. 99 Ark. 480; 39 S.W. 236.

If, as contended by appellants, they are not guilty of laches or negligence, they are placed squarely upon the proposition that they were not mistaken as to the instrument itself, but were mistaken as to the legal effect of the same. This affords no ground for reformation. 46 Ark. 167; 2 Pomeroy, Eq. Jur., § 448; 49 Ark. 425; 105 Ark. 455. The construction of a deed or contract, where it is certain and unambiguous, is always a question of law. 103 Ark. 428; 75 Ark. 55.

To entitle a party to reform a written instrument upon the ground of mistake, it is essential that the mistake be mutual and common to both parties, and the proof of such mistake must be clear and decisive, and that it was common to both parties by proof beyond reasonable controversy. 102 Ark. 326; 83 Ark. 131; 73 Ark. 614; 91 Ark. 162; 79 Ark. 256; Id. 592; 81 Ark. 166; Id. 420; 82 Ark. 226; 85 Ark. 62; 84 Ark. 349; 89 Ark. 309; 90 Ark. 24; 91 Ark. 246; 94 Ark. 200; 96 Ark. 230; 97 Ark. 635; 98 Ark. 23; 101 Ark. 461; 104 Ark. 475; 105 Ark. 455; 108 Ark. 503; 111 Ark. 205.

OPINION

HART, J.

On the 20th of February, 1913, appellants instituted seventeen suits in the chancery court against certain land owners, in which they sought a reformation of timber deeds executed by appellees to the Louis Werner Sawmill Company between the 8th and 15th of July, 1907. The defendants answered and denied the material allegations of the complaints and filed cross-bills in which they asserted that appellants had forfeited their right to cut and remove any of the timber involved in the suits and asked that the timber deeds be cancelled as a cloud upon their title. All of the suits were consolidated for the purpose of trial and the court rendered judgment against appellants, denying the relief sought, and granted appellees the relief prayed for in their cross-complaints. The cases are here on appeal.

The record in the cases is long, and to set out in substance the testimony of each witness would extend the limits of this opinion beyond what is practicable. We have read carefully and patiently the record in the case and have concluded that a statement of the facts pertinent to the issues raised by the appeal may be summarized as follows:

For several years prior to the year 1907 and since that time the Louis Werner Sawmill Company, a corporation, had a plant at Griffin in the northern part of Union County on the St. Louis, Iron Mountain & Southern Railway Company's road, where it manufactured lumber.

The Edgar Lumber Company, a corporation, had a sawmill plant at Wesson, in the southwest part of Union County.

Prior to the year 1907 the Louis Werner Sawmill Company had purchased from the appellees the timber which is the subject-matter of this action. There is a ridge which runs practically east and west through Union County and near its crest runs the El Dorado and Marysville public road. The timber in question lies in irregular strips and segregated tracts covering a territory about five miles long and, approximately, a mile wide at its widest point. The timber is south of the El Dorado and Marysville road and is about fifteen miles from Griffin, where the mill plant of the Louis Werner Sawmill Company is situated. The sawmill plant of the Edgar Lumber Company is about twelve miles southeast from the timber in controversy.

A local...