New Jersey & N.C. Land & Lumber Co. v. Gardner-Lacy Lumber Co.

• Decision Date: 18 April 1910
• Docket Number: 805.
• Citation: 178 F. 772
• Parties: NEW JERSEY & N.C. LAND & LUMBER CO. et al. v. GARDNER-LACY LUMBER CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

178 F. 772

NEW JERSEY & N.C. LAND & LUMBER CO. et al. v. GARDNER-LACY LUMBER CO. et al.

No. 805.

United States Court of Appeals, Fourth Circuit.

April 18, 1910

Iredell Meares (Robert Ruark, on the brief), for appellants.

George Rountree (Rountree & Carr and John D. Bellamy & Son, on the brief), for appellees.

Before PRITCHARD, Circuit Judge, and WADDILL and CONNOR, District judges.

CONNOR District Judge.

Complainant the New Jersey & North Carolina Land & Lumber Company filed its bill in equity December 12, 1901, alleging: That it was a corporation chartered and organized under, and pursuant to the laws of the state of New Jersey. That the defendant the Gardner-Lacy Lumber Company was a corporation chartered and organized under, and pursuant to, the laws of the state of South Carolina, and having a place of business in the Eastern District of North Carolina, and that the other defendants were citizens and residents of the Eastern District of North Carolina. That it was the owner in fee, seised and in possession by virtue of grants issued by the state of North Carolina January 1, 1795, and set out as exhibits, and by mesne conveyances, of contiguous tracts of land, situated in the counties of Columbus and Brunswick, in said district of said state, aggregating 170,000 acres and constituting one tract. That said land consists, in great measure, of what is known as cypress and juniper swamp lands.

That complainant has for over 30 years had possession of said land, except some small tracts within the lines, which complainant, or those from whom it derives title, conveyed out of the principal tracts, and that for more than said time complainant has exercised dominion over said land, having some 20 years ago built and operated a large lumber plant thereon, and cut and shipped timber therefrom, and from time to time has occupied and rented parts thereof, has had agents, and paid taxes thereon, for 28 years. That defendants as to some parts of the said land have filed entries under chapter 17 of the Code of North Carolina upon the pretense that such entries cover vacant and unappropriated lands, and without obtaining a grant, and in fraud of said act, as well as of the rights of complainant, have gone upon the said land so illegally entered and committed acts of trespass thereon. As to other parts of said land, defendants have obtained grants from the state under said chapter of the Code of North Carolina in fraud of said act and of the complainant, either by themselves directly, or indirectly by purchase from parties who had obtained such grants, and have gone upon the lands called for by such grants, and committed trespass thereon. That all of said entries and grants have been made and obtained so as to cover bodies of timbered lands within the boundaries of the tracts owned by complainant, consisting of juniper, cypress, and pine, which are of great value, and which constitute the chief value of the lands belonging to and in possession of, complainant. That defendants, under such illegal entries and grants, have gone upon the lands of complainant at sundry times, and cut and removed therefrom cypress, juniper, pine timber, etc. That the defendant the Gardner-Lacy Lumber Company operates at Georgetown, S.C., a large sawmill. That it has constructed a tramway at or near the mouth of Juniper creek, in Columbus county, North Carolina, and has established a branch office and shop at Excelsior, near the said Juniper creek, and it is engaged in cutting and removing timber and logging the same down Waccamaw river to its sawmill and plant at Georgetown. That said company has constructed its tramway up to, or across, the boundary lines of complainant's land, and had employed several hundred hands, and is engaged in cutting and removing cypress, juniper, and pine and other timber from the lands of complainant. That said company is encouraging and inducing others, as well as its employes, to commit acts of trespass, spoliation, and injury to the timber lands of complainant, etc. Complainant charges that other like acts of trespass, spoliation, and destruction have been, and are being, committed by other persons, whose names are unknown, and the complainant will ask leave to make them parties defendant; that it is unable to prevent such acts of trespass without great expense, labor, and litigation, all of which, it says, would cause 'endless litigation, and subject it to great inconvenience and expense; that actions of law and suits in equity against various and sundry persons would not be an adequate remedy to redress the wrongs of which it complains; that it would involve a multiplicity of suits to establish the titles of complainant, etc.'

Complainant also alleges that while it is informed of its own lines, the same having been surveyed, and the fact that the defendants and others are committing acts of trespass within its boundaries, it has been unable to ascertain from the records of Brunswick and Columbus counties the particular grants or deeds, if any, under which defendants pretend to justify and defend their acts of trespass upon complainant's lands, etc.

Wherefore complainant prays that defendant be required to disclose to the court the grants, entries, claims, or deeds under which they claim the right to cut timber upon said land. It also asks that defendant be enjoined from further trespassing upon complainant's land; that they account for the timber cut and removed therefrom; that complainant be declared to be the owner of said lands; and that the pretended claims, grants, entries, and deeds of defendants are illegal and void. It also demands that defendants be required to make discovery: First. Whether they jointly or severally claim any right, title, or interest in said land, and, if so, under what grants, deeds, leases, or claims, and that they file a full and complete abstract of such title, etc. Second. Whether they have entered upon the lands and cut or removed timber or logs therefrom, and, if so, the quantity, quality, and value thereof.

Copies of complainant's grants, maps, etc., are attached to the bill. A temporary restraining order, with an order to show cause, was issued. From time to time new parties were brought in by order of the court and orders made, declaring them to be the owners of the land described in their answers and the bill dismissed as to them. The Gardner-Lacy Lumber Company demurred to the bill, assigning as grounds therefor that the same was exhibited against said defendant and several other defendants for several distinct, separate, and independent matters and causes, which have no relation to each other; that it appears upon the face of the bill that the real cause of action is to try the title to said lands, and is maintainable only in a court of law. Twenty-three other defendants demurred, assigning the same causes. An interlocutory decree was made, the terms of which are not necessary to set out, except that complainant was required within 20 days to formulate issues and 'take steps to have its title to the land claimed by the Gardner-Lacy Lumber Company tried by a jury, and, upon failure to do so, the restraining order should be dissolved, but the cause retained. ' Defendant McKeithan filed an answer denying the material allegations of the bill, and setting up title to a tract of land under a grant from the state, dated January 1, 1852. On February 9, 1902, the demurrers filed by the Gardner-Lacy Lumber Company were overruled, and defendant required to answer the bill. As to defendant McKeithan and others, who filed answers, it was ordered that issues of fact be tried by a jury at the next term of the court. The injunction was continued. On the same day a large number of new parties were brought in by order of the court. Thereafter the Gardner-Lacy Lumber Company filed its answer, reserving all of its rights, denying the material allegations of the bill, and setting up title to certain tracts of land, the description and abstract of title to which are set forth in schedule attached to the answer. Several other defendants filed answers, some of them joining in one answer, and others filing separate answers, setting up title to tracts of land, described therein. On July 3, 1903, a decree pro confesso was passed as to a number of defendants who had not answered, and on November 4, 1904, another decree pro confesso was made as to other defendants not answering.

This decree was stricken out, as to several of the defendants, and an order made allowing them to answer. Final decrees, by consent, were made as to some of the defendants, who had answered, adjudging the complainant to be the owners of the lands described in the answers. From time to time other orders and interlocutory decrees were made. On April 12 1905, judgment of nonsuit by default was rendered against complainant as to the Gardner-Lacy Lumber Company and the other defendants under whom it claimed title. The cause was retained for the purpose of assessing damages against complainant sustained by defendant Gardner-Lacy Lumber Company by reason of the injunction. On March 1, 1907, this judgment was vacated and stricken out, and the cause restored to the 'same position as if the said judgment by default had not been entered. ' At the same time, an order was made directing a survey of the lands claimed by complainant and defendants. An order was made making the Waccamaw Land & Lumber Company party complainant. On September 2, 1907, defendants served notice on complainant that they would move the court to dismiss the bill 'on the ground that the same does not contain sufficient equities to give the court jurisdiction of the matter in controversy. ' On January 25, 1908, the judge heard the motion and made a decree containing...