Robertson v. H. Weston Lumber Co.

CourtUnited States State Supreme Court of Mississippi
Citation87 So. 120,124 Miss. 606
Decision Date21 February 1921
Docket Number21362

87 So. 120

124 Miss. 606



No. 21362

Supreme Court of Mississippi

February 21, 1921

APPEAL from circuit court of Hancock county, 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.

Judgment reversed, demurrer sustained, and cause 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 comity, 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 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 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; Robinson v. Gee, 26 N.C. 4 (Ired. L.) 186; Whitfield et al. v. Rowlands, 67 S.E. 512; Warren v. Short, 25 S.E. 704; (S. C.) Wilson L. Co. v. Anderson & San, 61 S.E. 217; (Ky.) Hicks et al. v. Phillips et al., 147 S.W. 42; (Pa.) Anderson v. Wade, 6 A. 48; Irwin v. Patchin, 30 A. 436. We know of no case holding to a contrary view; though Nelson v. Americus Manufacturing Co., 186 F. 486, is sometimes misconstrued.

We do not think it is necessary for the court to pass on this merchantable pine timber question in order to reverse this case; however, since the court expressly pretermitted the question, necessarily involved in the merchantable pine timber question here presented, of tree growth in the recent case of Vinegarbend Lumber Co. v. Churchwell, we thought it well to brief this point at some length so that, in event the court should desire in this case to decide the point, we may give the court the advantage of a somewhat exhaustive research which we have made of the subject. Since our research had brought to our attention but one case apparently holding to the contrary of the general rule stated, ie., the case of Nelson v. Americus Mfg. Co., supra, we have taken the liberty of attempting to distinguish that case from those holding to the general rule and, of course to distinguish it from the present case upon that point.

For the many errors pointed out above, which are manifest to us, we earnestly insist that the lower court erred in overruling the demurrer of plaintiff to the special plea of the defendant, and we think the case ought to be reversed.

Gex & Waller, for appellee.

The first special plea to which demurrer was filed is the plea of the statute of limitations. From this plea it will appear that the timber was cut no later than the latter part of the year 1908, and, therefore, practically twelve years had elapsed between the filing of the suit and the date of the cutting or the accrual of the right of action, and if the statute of limitations ran in this matter, certainly the suit was filed at least six years too late. Now the question is whether the statute of limitation runs in such a case.

In the first place, it must be remembered that this suit is for and in behalf of the inhabitants of the townships to whom were originally allotted the pine lands as set out in the declaration so that the suit, strictly speaking is not one out of which the whole people of the state of Mississippi will get any money; nor is it money belonging to the state in its sovereign capacity. The state is a party through its revenue agent only for the use and benefit of the inhabitants of the township. In this connection, though, we want the court to understand that we are familiar with the section of the constitution and the Code providing that the statute of limitation shall not run against a state, a municipality or any subdivision of government.

But these provisions are only declaratory of the common law. No such statutes ever run against the state in its sovereign capacity, and it does not take any express legislative act or constitutional provision to keep the statute from running against the sovereign or any subdivision thereof, when acting in its sovereign capacity, and, therefore, the section of the code and the constitution providing that the statute of limitation shall not run against the state or any of the subdivisions of government is only declaratory of the common law, and therefore, we say, that unless this suit is a suit for and in behalf of the state acting in its sovereign capacity, that the statute of limitation will run against the beneficial interests for whom the suit is filed. The county as a subdivision of government or the state as a sovereign, obtains no benefits from these funds, if any should be recovered, in this cause. All of it belongs to the inhabitants of the townships, shall be accounted for to them, and is...

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