Roper Lumber Co v. Works

• Decision Date: 28 February 1912
• Court: North Carolina Supreme Court
• Parties: ROPER LUMBER CO. v. RICHMOND CEDAR WORKS et al.

73 S.E. 902

(158 N.C. 161)

ROPER LUMBER CO.

v.RICHMOND CEDAR WORKS et al.

Supreme Court of North Carolina.

Feb. 28, 1912.

1. Injunction (§ 46^*)—Tkespass—Defendant's Solvency—Materiality.

Under Revisal 1905, § 807, which obviates necessity for pleading defendant's insolvency in an action to enjoin a continuous trespass or a destruction of timber trees, a complaint, which alleges both kinds of trespass and unauthorized appropriation of part of plaintiff's land for operation of a steam railroad, is sufficient without allegation of defendant's insolvency.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 98-106; Dec. Dig. § 46.*]

2. Easements (§ 12*) — Grants — Sufficiency.

A letter from a landowner, stating that if the addressee should desire to remove timber cut on the landowner's land he would not be unwilling to give permission, is insufficient to entitle the addressee to construct a steam railroad over the land.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 35-41; Dec. Dig. § 12.*]

3. Easements (§ 44*)—Creation—Extent-Construction of Judgment.

An order, in a suit where both parties claimed title to a particular tract, that each might remove such timber as had already been cut, did not grant a right of way across the other's land for a steam railroad.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*]

4. Easements (§ 44*)—Creation—Extent-Decree—Construction—"Carting."

A decree in partition in 1817, when steam railroads were unknown, giving each tenant the right of "carting" timber across the other's land, does not authorize a present owner of a tract of the land to construct a steam railroad over an adjoining tract, especially sincethe privilege was not incorporated in conveyances subsequent to the decree under which the parties claimed.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.^2-*

For other definitions, see Words and Phrases, vol. 1, p. 984.]

5. Easements (§ 61*)—Ways by Necessity-Pleading.

In pleading a way by necessity, the facts on which it is based must be specially pleaded.

[Ed. Note.—For other cases, see Easements, Dec. Dig. § 61.*]

6. Easements (§ 18*)—Way by Necessity.

Under grants without reservation of a way, way of necessity passes as an incident to the grant.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*]

7. Easements (§ 18*)—"Way by Necessity."

A "way by necessity" arises only between grantor and grantee; none arising where there is no privity of title.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*

For other definitions, see Words and Phrases, vol. 8, pp. 7418, 7419.]

8. Easements (§ 18*)—Way by Necessity-Requisites.

An owner of timber is not entitled to an easement for its removal as a way by necessity on the ground of mere inconvenience in adopting any other possible way, and a plea of such way is insufficient where it fails to show no other possible way.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*]

9. Private Roads (§ 2*)—Removal of Timber—Acquisition of Right of Way — Method.

Except as to ways by necessity, the right to establish cartways, tramways, etc., over the lands of another for the removal of timber, depends upon a purchase or acquisition under Revisal 1905, § 2686.

[Ed. Note.—For other cases, see Private Roads, Dec. Dig. § 2.*]

Appeal from Superior Court, Camden County; O. H. Allen, Judge.

Actions by the Roper Lumber Company against the Richmond Cedar Works and others were consolidated. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Angus D. MacLean, and W. M. Bond, for appellant.

Aycock & Winston and Starke, Venable & Starke, for appellees.

BROWN, J. It is admitted for the purposes of this appeal that the plaintiff is the owner of lots 2, 3, and 12, and the defendant of Nos. 7 and 8, in the division of the lands known as the New Lebanon estate, and it also appears that defendant has purchased an interest in lots 1 and 4 of said division. It also appears that the defendant claimed the Allen swamp, lying south of the New Lebanon lands, in which defendant had cut certain timber before the beginning of this suit. Neither the Cedar Works Corporation, or its codefendant and subsidiary, the Dismal Swamp Railroad Company, are common car riers, and they do not assert any right of eminent domain. All of the evidence shows, plaintiff's affidavits being uncontradicted in this respect, that defendants were constructing and operating railroads and carrying away timber over plaintiff's land, occupying the camps thereon, and cutting out trees and undergrowth along the roadways.

The defendant contends that the injunction was properly dissolved for five reasons:

1. Because the complaint fails to allege the insolvency of the defendant.

We disagree with counsel that plaintiff's allegations do not bring its case within the spirit of section 807 of the Revisal. That act distinctly relieves the plaintiff in an action to enjoin a trespass upon land from alleging insolvency "when the trespass complained of is continuous in its nature, or is the cutting or destruction of timber trees." Lumber Co. v. Cedar Co., 142 N. C. 418, 55 S. E. 306. The complaint in this case alleges both species of trespass, and an appropriation of a part of plaintiff's property, without authority, for the purpose of operating a steam railroad over it. Such trespasses as those alleged would have been enjoined at common law without the aid of the statute. Gause v. Perkins, 56 N. C. 181, 69 Am. Dec. 728; Tise v. Whitaker, 144 N. C. 511, 57 S. E. 210. Even a railway corporation, a common carrier, possessing the power of eminent domain, may be enjoined from an extension of its track unauthorized by its charter. The right to enjoin in such cases does not depend upon the insolvency of the corporation, but the remedy is given because of the extraordinary 'character of the act sought to be enjoined. 1 High on injunctions, § 599; People v. Railroad Co., 45 Barb. (N. Y.) 63. It would be a most extraordinary destruction of the rights of property if a private corporation, possessing no power of eminent domain, could seize the lands of another, to which it had no semblance of title, and appropriate them to its own use, simply because it was able to respond in damages. This contention of the defendant is, in our opinion, without support in reason or authority.

2. Because the defendant had the permission of the plaintiff to remove its timber from the Allen swamp, and this permission carries with it the power to remove it by the usual and ordinary methods.

The only foundation for this claim is a letter from C. I. Millard, written to W. J. Parrish, general manager of defendant in reference to the litigation concerning Allen swamp (no part of the New Lebanon lands), in which this expression is used: "Should there be any desire on your part to remove the timber which you have cut, you will not find us unwilling to give our permission." We are cited to no authority by defendant tendingto support this contention. Assuming that the letter was authorized by plaintiff, its language is too indefinite to convey any right on estate in lands, much less a right of way for a railroad across plaintiff's New Lebanon lands, or even to be effective by way of an estoppel.

3. The defendant rests its third claim upon an order at spring term, 1911, made by Ward, judge, in a suit in the superior court of Gates county, wherein this defendant was plaintiff, and this plaintiff was defendant, in which is this paragraph: "It is further ordered and adjudged that each party shall have the right to remove such timber as it has already cut on said land."

It is admitted that the suit in which this order was made concerned the Allen swamp only, and had no connection with the New Lebanon lands. The record in that case shows that both parties claimed title to the Allen swamp and had cut timber in it at the time the order was made. While the learned counsel for defendant in their brief profess to rely on this order "above and beyond all other contentions, " they cite no authority and give no substantial reason why such order can reasonably be construed to include the grant of a right of way across lands not connected in any way with the subject of litigation. Both parties had cut timber in the Allen swamp, the title to which was in litigation, and the order was intended to give to each party the right to remove such timber as it had already cut from the swamp, and does not purport to go beyond that. The order does not undertake to provide any means of transportation for the timber after it is removed from the confines of the swamp.

4. It is again contended that the partition proceedings of the New Lebanon estate gives defendant authority by virtue of its ownership of lots 7 and 8 to construct and operate its railroad across plaintiff's lots 2, 3, and 12.

The facts are that in the year 1817 the New Lebanon estate, a large tract of land in Camden county, was partitioned among the several tenants in common. The Cross Canal runs through this land eastwardly and is tributary to the Dismal Swamp Canal. It was used to float juniper logs down to the Dismal Swamp Canal, a navigable waterway, and 'in order that this use of the Cross Canal might be preserved, it was provided in the division that "it will be a conveniency in carting to the Cross Canal, or Crooked Ditch, for one proprietor to cross the land of another; therefore every proprietor is to have the free privilege of carting across another proprietor's share, but not to have any privilege to cut any timber except for the making or repair of the road." This provision was not incorporated nor the privilege specially reserved or granted in any of the subsequent conveyances under which either party...