McLeod v. Dial

• Decision Date: 17 October 1896
• Citation: 37 S.W. 306
• Parties: McLEOD v. DIAL.
• Court: Arkansas Supreme Court

37 S.W. 306

McLEOD v.DIAL.

Supreme Court of Arkansas.

October 17, 1896.

Appeal from circuit court, Cleveland county; M. L. Hawkins, Judge.

Action by George W. McLeod against H. M. Dial.From the decree, plaintiff appeals.Modified.

Met L. Jones, for appellant.D. H. Rousseau, for appellee.

BATTLE, J.

Two sisters, Margaret and Leonora Little, owned a certain tract of land in fee.While they owned the land, Margaret married S. A. Simpson, and Leonora, Thomas S. Dykes.Leonora conveyed her one undivided half interest to S. A. Simpson; and Margaret died intestate, leaving her husband, and three minor children, the offspring of her marriage, her surviving.Afterwards, on the 15th of September, 1886, Simpson executed to George W. McLeod an instrument of writing, which, as it appears in the record here, with many words unintentionally omitted, is in the words and figures following, to wit:

"This deed, made the 15th day of September, 1886, and between S. A. Simpson, of the county of Jefferson, and state of Arkansas, party of the first part, and Geo. W. McLeod, party of the second part, witnesseth that the party of the first part, for the consideration hereinafter set forth, has given, granted, and conveyed, and by these presents does give, grant, and convey, unto the party of the second part and its assigns, the exclusive privilege for ten years to cut, haul away, and remove pine, oak, hickory, and other trees from the land in said counties of Jefferson and Cleveland, described as follows: `S. E. ¼ of Sec. 33, T. 17 S., R. 10 W.; the N. ½ N. E. ¼ of Sec. 4, T. 8 S., R. 10 W.'And to effect the object of the part aforesaid the second party and its assigns, their agents, servants and employés with wagons and teams, and shall have free first party over which it may be necessary to pass to effect said object with right of way not exceeding fifty feet wide for the construction of such railway tracks as they may decide to build and operate through the land described; and the second party has paid to the first party in full compensation for the rights and privileges aforesaid the sum of one hundred dollars, the receipt of which is hereby acknowledged, the first party waiving and releasing all claims for damage its milling business, and will remove such only as it may consider suited thereto.

"In witness whereof the said parties of the first part hereunto set their hands and seals the day and year first above written.

  "[Signed]                   S. A. Simpson."
                

Simpson was appointed guardian of his children, and he procured an order of the probate court of Jefferson county to sell their interest in the land on the 11th day of February, 1888, and sold the same on that day to Henry M. Dial, and reported the sale to the probate court, which confirmed it.On the 5th day of March following he conveyed his undivided half interest in the land to Dial, who purchased at both sales with notice of the rights acquired by McLeod by virtue of the deed executed to him by Simpson on the 15th of September, 1886.Dial then took possession of the land, refused to permit McLeod to exercise the rights claimed by him under the deed last mentioned, and commenced to cut and destroy the timber on the land.McLeod thereupon brought this action against Dial in the Cleveland circuit court, to enforce his rights.

Upon the hearing of the evidence adduced by both parties, the court found that McLeod acquired the right to cut and remove the timber on the undivided half that belonged to Margaret Simpson in her lifetime for 10 years from the 15th of September, 1886, and decreed that the title to the land be quieted in Dial, subject to the right of McLeod to cut and remove timber as before stated; and McLeod appealed.

The deed of Simpson to McLeod was assailed by the appellee on the ground that it was a license, revocable at the will of Simpson, and was revoked by the deeds to Dial.This contention presents the first question for our consideration.

A license is defined to be "an authority given to do some act, or a series of acts, on the land of another, without possessing an estate therein."Cook v. Stearns, 11 Mass. 533;Mumford v. Whitney, 15 Wend. 380.A mere license is revocable, but what is called a license is sometimes connected with an...