Pokegama Sugar-Pine Lumber Co. v. Klamath River Lumber & Improvement Co.

• Citation: 86 F. 528
• Decision Date: 18 April 1898
• Docket Number: 12,578.
• Court: U.S. District Court — Northern District of California
• Parties: POKEGAMA SUGAR-PINE LUMBER CO. v. KLAMATH RIVER LUMBER & IMPROVEMENT CO.

86 F. 528

POKEGAMA SUGAR-PINE LUMBER CO. v. KLAMATH RIVER LUMBER & IMPROVEMENT CO.

No. 12,578.

United States Circuit Court, N.D. California.

April 18, 1898

E. S Pillsbury (F. D. Madison and James F. Farraher, of counsel) for complainant.

F. S Stratton (S. C. Denson, W. W. Kaufman, H. B. Gillis, and James R. Tapscott, of counsel), for respondent.

MORROW Circuit Judge.

It is alleged in the bill of complaint that the complainant is a corporation, organized under and by virtue of the laws of the state of California, for the purpose of carrying on a general lumbering business, operating mills, railroads, chutes tramways, and all other structures, appurtenances, and appliances necessary and proper for the conduct of said business, and, as such corporation, has ever since the-- day of September, 1897, been engaged in carrying on a lumbering business in the county of Siskiyou, in this state; that the respondent is a corporation organized and existing under the laws of the state of Oregon, for the purpose of carrying on a general lumbering business, and, as such, has been engaged in doing business in the state of California, has acquired property in said state, and is now doing business therein; that on the 24th day of February, 1897, the respondent and one Hervy Lindley entered into an agreement in writing whereby the respondent agreed to lease to said Lindley, or his assigns, the entire lumber plant situated in Siskiyou county, Cal., and Klamath county, Or., consisting of pine lands, logging railway and equipments, log slide, all rights of way and franchises, and booms and improvements, in the Klamath river, sawmill and sawmill property, yard, tramways, switches, and all lands and appurtenances thereto belonging, planing mills, sheds, and lands connected therewith, office, barn, and all fixtures therewith connected, teams, wagons, harnesses, and in fact all appurtenances to respondent's lumber business either at Pokegama (Klamathon), or in the lumbering camps, or wherever located, as the property of the company, for the term of two years from and after the 30th day of March, 1897. The consideration for the lease was a certain division of the profits, and it was further provided that Hervy Lindley, or his assigns, should have the privilege of continuing the lease on the same terms to March, 30, 1902, and this privilege was further extended to March 30, 1904. It was also provided that Lindley should have the right until March 30, 1897, to accept or reject the proposition contained in the agreement to lease; and, if accepted, the Klamath River Lumber & Improvement Company agreed to execute a lease in accordance with the terms of the agreement. The time for this acceptance by Lindley was extended to April 10, 1897, and prior to that date Lindley accepted the agreement; and accordingly, on April 7, 1897, the Klamath River Lumber & Improvement Company made, executed, and delivered to Lindley a lease for all the property described in the agreement of February 24, 1897. The bill further alleges that, upon the execution of this lease, Lindley signed and accepted the same, and entered into possession of the property, and immediately undertook its management and operation as a lumbering business; that, on the 15th day of September, 1897, Lindley sold, assigned, transferred, and made over, for a valuable consideration, to the complainant, the said instrument in writing, and all his right, title, and interest therein and thereunder, and thereupon complainant entered into the possession of all said property as the assignee and successor in interest of Lindley and thereafter conducted, operated, and carried on the plant and lumbering business, pursuant to the terms of the lease, until the interference and interruptions described in the bill. The bill describes the lumbering plant and its appurtenances on the Klamath river, a log slide or chute on the river about 24 miles above the sawmill, and a railroad about 9 miles long, with rolling stock, used for the transportation of logs from the timber lands to the log slide or chute. It is alleged that between the 7th day of April, 1897, and the-- day of February, 1898, Lindley and the complainant cut, and caused to be cut, 15,000,000 feet of logs, to be sawed at the sawmill during the sawing season of the year 1898; that about 4,500,000 feet were in the woods adjacent and contiguous to the railroad, about 6,000,000 feet alongside of the railroad, ready to be loaded upon the cars, and about 4,500,000 feet were in the Klamath river at Klamathon, and about 1,000,000 feet in the booms connected with the mill; that, in the cutting and preparing said logs for the mill, the complainant had expended more than $50,000, and had also expended more than $20,000 in equipping the mill, railroad, and other portions of the plant; that the sawing season for the year 1898 began on or about the-- day of February, 1898, at which date complainant had the sawmill and plant in complete readiness for the sawing season; that on the-- day of February, 1898, and in the nighttime, the respondent, acting by and through its president, J. R. Cook, and W. E. Cook and John S. Cook, as directors and agents of the respondent, violently and by force of arms entered into the said sawmill, drove the watchman of complainant out of the mill, and excluded the complainant therefrom by force and violence, and then proceeded to block up said mill, and in such manner as to prevent the use thereof, or the taking of logs from the booms or lumber from the yard, by barricading the openings of the mill; that, in forcibly taking and occupying said sawmill, the respondent employed not only its president, J. R. Cook, and its directors and agents, W. E. Cook and John .s Cook, but also from four to six fighting men, who entered into the mill in the nighttime, armed with shotguns and rifles, and drove the watchman of complainant therefrom by threats and violence, and have ever since remained therein, armed with shotguns, rifles, and ammunition, and have ever since, by force and threats and by the exhibition of firearms, excluded the complainant, its agents, representative, and employes, from the mill, and prevented the use and occupation thereof by complainant; that the acts and doings of respondent were not preceded by any peaceable entering upon the property, or any part thereof, or any attempt to make such entry, or any demand upon complainant for the possession of the same, or the privilege of entering thereon, or any complaint that Lindley or complainant had failed to keep or perform any of the covenants or conditions of the lease; that, on account of the violent and unlawful acts of respondent, the complainant has suffered great and irreparable injury by delay and interference in the prosecution of its lumbering business, and, unless respondent be enjoined and restrained from a continuance of its unlawful acts, complainant will suffer still greater and further irreparable damage and injury; that the season for floating logs down the Klamath river will expire on or about June 1, 1898; that the water in the river is unusually low for this time, and there is every reason to expect that the season for floating logs will be shorter during the current year than usual, and the water will thereafter be too low for successfully driving or floating logs; that, if the logs already cut are not hauled, taken to said sawmill, and sawed during the present logging season, they will deteriorate at least 50 per cent. in value, and, if not used in 1899, they will be a total loss; that the said sawmill is the only one available to complainant, and the only mill to which the logs can be delivered; that there is no sale for said logs and no use for the same except to be worked at said mill; that, by the wrongful acts and interferences of the respondent, the complainant has been, and is, subjected to a daily expense of $100 or more, which is a dead loss to complainant; that respondent threatens to continue its interruptions and annoyances, and will continue the same, unless enjoined and restrained by this court; that the respondent is insolvent and wholly unable to respond in damages on account of the unlawful acts and injuries mentioned, and complainant has no plain, speedy, or adequate remedy at law against the wrongful acts of the respondent. The prayer of the bill is that an injunction may issue, restraining and enjoining the respondent, its successors, officers, attorneys, agents, and servants, and each and all of them, from in any manner interfering with, impeding, or hindering, and from causing to be interfered with, impeded, or hindered, the complainant in the occupation, conduct, transaction, and management of its lumbering business in the county of Siskiyou, state of California, and, in the meantime and until the hearing, the complainant may have an injunction pendente lite, embracing all the relief prayed for in the bill.

Upon the filing of the bill, on the 17th day of March, 1898, an order was issued requiring the respondent to show cause why an injunction pendente lite should not be granted, and, upon the complainant giving a bond in the sum of $10,000, the respondent, its officers, attorneys, agents, and servants, were restrained, in the meantime, from any manner interfering with, impeding, or hindering, and from causing to be interfered with, impeded, or hindered, the Pokegama Sugar -Pine Lumber Company, its successors, officers, attorneys, agents, or employes, or any of them, in occupying, conducting, managing, and carrying on all the property mentioned in the lease.

It appears, from the return of the deputy United States marshal that this order was served at Klamathon, in Siskiyou county, on the 21st day of March, 1898, on the Klamath River Lumber &...