Robertson, State Revenue Agent, v. H. Weston Lumber Co.

CourtUnited States State Supreme Court of Mississippi
Citation87 So. 120,124 Miss. 606
Decision Date01 January 1920
Docket Number21362
PartiesRobertson, State Revenue Agent, v. H. Weston Lumber Co.

87 So. 120

124 Miss. 606

Robertson, State Revenue Agent,

H. Weston Lumber Co.

No. 21362

Supreme Court of Mississippi

January 1, 1920

1. LIMITATION OF ACTIONS. Does not run against suit for benefit of township to recover for timber cut; "subdivision."

A township is a subdivision of the state within the meaning of section 104 of the state constitution 1890, providing that the "statutes of limiitation in civil causes shall not run against the state, or any subdivision of municipal corporation thereof," as under the law such townships were organized for the purposes of administering and using sixteenth section funds belonging to the inhabitants of such townships, and consequently statutes of limitation do not run against the township in suits instituted to recover the property or funds of the township.

2. COURTS. Federal court cannot enjoin suit by state; injunction against suit by officers in name of state void for want of jurisdiction: "suit against the state."

The federal courts have no power to enjoin a suit by the state in its sovereign capacity under the Eleventh Amendment to the Constitution of the United States. The state can only act through officers and agents, and where such officers and agents are authorized by a valid law to institute suits in the name of the state, and such suit is brought, the suit to enjoin such officers from proceeding with such suits is a suit against the [124 Miss. 607] state which is prohibited by the Eleventh Amendment, and a writ of injunction issued in such case is void for want of jurisdiction in the federal court to entertain the suit.

3. JUDGMENT. Not conclusive against right to sue for timber afterwards cut, though reciting that, uncut timber was rendered worthless.

Where the state, through the revenue agent, brought suit for timber cut unlawfully, and for damages for the timber remaining on the land by reason of the method of cutting, in which judgment was recovered in a gross sum, the judgment reciting that by means of the manner of cutting the value of the uncut timber was practically destroyed, such judgment is not res judicata of the state's right to sue for timber cut subsequent to the judgment by the defendant. Such judgment did not operate as a conveyance of the timber not cut at the date of such judgment.

4. JUDGMENT. Compromise judgment for cutting of timber held binding on state.

Where the state, through its lawfully authorized officers, brings suit for a demand sounding in tort for an unascertained and unliquidated demand, and such officer in good faith agrees on the value of the subject of the action with the adversary party, and judgment is entered on such agreement, and the money paid on such judgment, the state is bound by such judgment as to the matters embraced in the suit in which the judgment is rendered. In such case section 100, Const. 1890, has no application.

5. LOGS AND LOGGING. Deed to "merchantable timber" conveys only that merchantable at date of deed.

Where the authorities authorized to execute a deed for the "merchantable timber" on the sixteenth sections or lands in lieu thereof, executed a deed to the "merchantable timber" on the same, and give by the lease a term of years in which to cut and remove it, the timber which passes by such conveyances is the timber that is merchantable at the time the deed is executed, and does not convey such as subsequently becomes merchantable by growth or changes in custom, etc.

6. JUDGMENT. Not conclusive against right to sue for timber afterwards cut, though reciting that, uncut timber was rendered worthless.

Where the state brought suit and recovered judgment for timber cut, and also for damage done to the timber growing that had not been cut, but which alleged that by reason of the method of [124 Miss. 608] cutting the remaining timber which was not cut was practically worthless as a timber proposition, it is not estopped to sue for the cutting of timber cut subsequent to such judgment. Such timber may become valuable by reason of subsequent events and conditions.

HON. D. M. GRAHAM, Judge.

Action by Stokes V. Robertson, State Revenue Agent, against the H. Weston Lumber Company. From a judgment for defendant on demurrer, complainant appeals. Reversed and remanded.

F. C. Hathorn and A. A. Hearst, for appellant.

The first defense is the statute of limitations. We take the position that the statute of limitations has no application in this case for two reasons, and the mere statement of them is, we believe, sufficient argument. First, the state is the plaintiff, and the statute of limitations does not run against the state, Section 104, Constitution 1890; Section 3096, Mississippi Code of 1906.

The next defense presented by the plea is what we may briefly call that of res judicata. Briefly, it is contended by the defendant that there was a former litigation between these parties in the chancery court of Hancock county, Mississippi, in which this appellant's predecessor in office was the complainant and the appellee the defendant, by which the complainant undertook among other things, to recover from the defendant damages for cutting timber off certain lands including the lands described in this declaration, and there was a final decree by the chancery court awarding fifty thousand dollars as damages for cutting timber off the lands described in the present suit and other lands described in the former suit.

Surely the court in that case could not adjudge or determine anything about trespasses that might be committed in the future. That court was absolutely without any authority to say in that case that the timber remaining [124 Miss. 609] on the lands at that time were of no value, because that fact was not in issue and could not be, the only question before the court was the amount of damages committed up to that time, and in assessing that it might determine the value of the timber already taken, but certainly it could not go so far as to say that the timber then remaining on the land was of no value, and if the court should undertake to make such an adjudication, it would be nothing more than obiter dictum.

And again, if the court should be said to have had jurisdiction then to adjudge that the timber then remaining on the land was of no value, surely it could not go so far as to say that it would never become of some value; so, we insist, that the court could not in that case have adjudged the issues involved in this case all of which arises out of facts transpiring after the final disposition of that case.

The court below, in passing on plaintiff's demurrer to defendant's special plea, seems to have overlooked that portion of the second ground of demurrer found in the following language shown at page 70 of the record; and even if defendant did acquire a right to cut timber on said lands by the alleged contracts in said exhibits, it only acquired the right to cut such timber as was merchantable pine timber at the date of said contract." The declaration, pages 2 and 3 of the record, alleges that the defendant, in addition to cutting the timber on said lands, killed and destroyed other great quantities of timber and trees and saplings and younglings on the said lands.

Now, the only authority of the boards of supervisors of Jasper and of Bolivar counties to sell any timber on said lands at the date of these deeds, 1899 and 1902, respectively, if in fact the law they were authorized to sell any timber on the same situated, as this land was, in Hancock county, was granted and contained in chapter 41, Laws of 1898. This law only authorized the sale of the "merchantable pine timber" on sixteenth section lands, and did not authorize the sale of any other kind of timber thereon, and any language in the pretended deed or contract purporting [124 Miss. 610] to embrace any timber on the lands which did not qualify, at the date of such deed or contract, within the meaning of the term "merchantable pine timbers" as used in the statute, would be null and void and any judicial interpretation of the deed or contract giving it the effect of having conveyed or authorized the right to cut any timber on the land which was not merchantable pine timber at the date of the deed as said term was used in the statute and interpreted in the light of its generally accepted meaning at the time of the enactment of said statute, then such judicial interpretation would be erroneous.

There can be no doubt but that, if under the deeds the defendant could cut any timber on the lands, he would have been confined in such cutting to that which qualified within the meaning of the term merchantable pine timber at the date of the deeds or contracts under which he claimed the right to cut, and the cutting of any trees thereon which were not at the date of such deeds or contracts merchantable pine timber was wrongful and he was liable in damages for cutting the same.

The general rule, we might say supported by unanimous authority, in the construction of timber deeds is that the provision in a timber deed as to the size or suitability of the trees refers to the time of the conveyance, rather than some time in the future, in the absence of anything to show a contrary intent.

In support of this general rule, we cite the following cases: (Ala.) Zimmerman v. Wilson, 77 So. 364; (Ark.) Griffin et al. v. Anderson Tully, 121 S.W. 297; (S. C.) Crawford v. Atlantic Coast L. Co., 60 S.E. 445; (Ky.) Evans v. Dobbs et al., 112 S.W. 667; (Pa.) Shiffer v. Broadhead, 17 A. 592; (Ga.) Mills & Williams v. Ivey, 60 S. E.---; Shippin Bros. L. Co. v. Gates, 70 S.E. 672; Vandiver v. Byrd-Mathews L. Co., 90 S.E. 690; Allison v. Ware, 49 S.E. 831; Roberts v. Gress, 67 S.E. 802; Goette v. Lane, 36 S.E. 758; Carter v. Williamson, 31 S.E. 651; McRea v. Stillwell (and notes) 55 L. R. A. (old) 513; (N. C.) Whitted v. Smith, 47 N. C. (2 Jones) 36; [124 Miss. 611] Robinson v. Gee, 26 N.C. 4...

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    • United States
    • United States State Supreme Court of Mississippi
    • February 14, 1921
    ...virtue of said trust deed." The only right claimed by Smith to sue on the note is such as was conferred on him by this decree, but we are [124 Miss. 606] not called on to determine what right was thereby intended to be conferred, for as Coleman was not a party to the decree it, of course, i......

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