Roux v. Houk

• Decision Date: 03 April 1931
• Parties: ROUX et al. v. HOUK et al.
• Court: Florida Supreme Court

133 So. 853

101 Fla. 64

ROUX et al. v. HOUK et al.

Florida Supreme Court, Division A.

April 3, 1931

Suit by E. T. Roux and H. L. Askew, copartners as the Roux-Askew Lumber Company, and others, against C. W. Houk and others Supervisors of Pomello Drainage District of Manatee County and others. From an order sustaining a demurrer to the bill complainants appeal.

Affirmed.

Syllabus by the Court.

SYLLABUS

While a contract for the cutting of timber may be a contract concerning an interest in land so far as it contemplates a sale of the standing timber, the intention may not exist between grantor and grantee as expressed by the words of the entire instrument to convey the timber absolutely.

In contracts for the sale of standing timber to be taken off the land in a given time under conditions named in the contract the purchaser takes no beneficial interest in the land itself. He only acquires a right of entry on the land during the time specified in the contract for cutting and removing the timber.

A sale of timber may be made so as to pass to the purchaser a perpetual right to have the timber remain on the land or a perpetual right to enter and remove it.

While a sale of growing trees to be cut and removed within a definite time may be within the statute of frauds, in that such a contract creates an uncertain interest out of lands, it does not follow that such interest constitutes the owner of it an 'owner in acreage' of lands within the meaning of sections 1451, 1452, and 1453, Comp. Gen. Laws 1927, relating to the formation of drainage districts.

While the notice required to be published of the proposed formation of a drainage district is to 'all persons interested' in the lands proposed to be incorporated in the district, the purpose of the notice is to apprise the owners of lands to be reclaimed which by reason of their wet condition constitute a menace to health and upon which an acreage tax will be levied to pay the expense.

Appeal from Circuit Court, Manatee County; W. T. Harrison, judge.

COUNSEL

McKay, Withers & Ramsey, of Tampa, for appellants.

John B. Singeltary, of Bradenton, for appellees.

OPINION

ELLIS J.

This is an appeal from an order sustaining a demurrer to a bill in equity to restrain C. W. Houk and others, as supervisors of Pomello drainage district of Manatee county, Fla., and Canal Construction Company from cutting and destroying timber belonging to the complainants located on certain lands lying within the drainage district, and from cutting and building ditches and canals until the further order of the court, and to assess the damages which complainants allege to have been sustained by them by reason of the construction of canals and the incidental destruction of trees on the lands.

The bill was brought by E. T. Roux and H. L. Askew, as copartners under the firm name of Roux-Askew Lumber Company, S. B. Denton and Miller Lumber Company, a Florida corporation, and E. T. Roux as receiver, who was appointed in a cause between Roux-Askew Lumber Company and R. L. Dowling & Sons, Inc., a Florida corporation for the foreclosure of a lien alleged to have been held by the complainants. The only parties in interest on the complainants' side seem to be E. T. Roux and H. L. Askew, copartners under the name of Roux-Askew Lumber Company.

As the validity of the proceedings under which the drainage district proceeded with its work is questioned, a brief statement of the facts disclosed by the bill to which the demurrer was sustained is essential. The Pomello drainage district, which embraces the lands described in the bill, was organized under the provisions of the statute law of Florida. C. W. Houk, A. B. Elbon, and Wallace Tervin constitute the board of supervisors. The board let a contract to Canal Construction Company to cut certain drainage ditches through the land described. The ditches to be cut were set out in the plans and specifications prepared by an engineering company and presumably adopted by the board.

A map of the drainage district, in so far as it affects the lands described, was according to the bill attached as an exhibit, and reference to it was made, but neither the map nor a copy of it is in this record.

The board and the canal company have entered upon the lands, cut some of the ditches, and in doing so destroyed a number of trees. Some of the ditches are twenty feet deep and quite as wide, the dirt from which is piled along the banks to a great height, rendering it impracticable for the complainant who has timber rights on the land to enter and cut and remove the timber without building bridges across the ditches for railroad tracks and to make the wagon roads available for hauling the timber as it is cut.

It is alleged that these activities of the board of supervisors and the canal company have already resulted in damaging the complainants in a large sum, which will ultimately exceed $15,000.

It is alleged that the defendants have conducted no proceedings for the purpose of acquiring the right to enter upon the lands and cut and destroy the timber and to cut the ditches and thus to interfere with the complainants' rights to enter and build their roads; no provision has been made for their compensation, nor have the complainants received any compensation for the timber destroyed and the injury to their rights. It is alleged that the district has issued bonds in the sum of $250,000, and it will require all of that amount to complete the construction of the ditches according to the plans, and no funds will be left with which to compensate the complainants for the injury sustained by them.

It is alleged that the complainants have no interest in the lands, but only have a license to enter and cut the timber therefrom within a certain specified time as set forth under the contract held by them; that they have ahd no notice of the defendants' intention to carry on the drainage operations and interfere with the complainants' rights.

No attack is made upon the organization of the district.

The complainants' rights rest upon a written instrument executed by Howard Turpentine Company, a copartnership composed of E. E. Edge and others, who owned the land, to C. B. Brim and others, under which a license was 'given and granted' to Brim and others to enter upon the lands and to cut and remove the timber therefrom upon terms set forth in the writing. It is alleged that the written instrument is recorded in Deed Book 69, page 6, of the public records of Manatee county, to which reference is prayed for its contents. The instrument was executed in May, 1922. Brim and others in February, 1923, transferred in writing all their rights under the 'agreement' to Roux-Denton Lumber Company, a corporation. That instrument is also recorded in the public records of the county.

On the last-mentioned date Edge and others, copartners as Howard Turpentine Company, entered into an agreement with Roux-Denton Lumber Company whereby the agreement between that company and Brim and others, to which the Roux-Denton Lumber Company succeeded, was 'modified, altered and extended,' and it is alleged that the Howard Turpentine Company gave and granted to the Roux-Denton Company the 'right and license' to enter upon the lands upon certain terms and for certain considerations mentioned. That instrument is also recorded in Deed Book 70, page 233, of the Manatee county records. That instrument contained provisions which it is essential to notice because the rights of the complainants Roux and Askew as copartners under the name of Roux-Askew Lumber Company are determined by the terms of that instrument.

According to the allegations of the bill, the instrument provided in substance, first, that, if the purchasers were not in default in payments at a certain date December 31, 1926, they 'shall have the right' until December 31, 1929, 'to cut and remove the said pine timber' from certain sections of land and certain of the lands lying south of the railroad; second, that, if the purchasers were not in default on December 31, 1927, they 'shall have the right' to December 31, 1929, 'to cut and remove' the timber on certain other lands and the same sections lying north of the railroad; third, that, after the expiration of the period of time provided for cutting the timber, the 'purchaser shall have no rights whatever in any timber now or then on said lands' on which the cutting period has expired which timber has not been removed therefrom and the title to all timber then remaining thereon shall revert and become vested in the vendors,' the Howard Turpentine Company; fourth, the purchaser 'covenants and agrees' that, as fast as the timber is cut and removed from the lands from time to time released to purchaser for 'cutting and removing,' the 'overcut lands shall immediately from the time that they are cut over be free from any and all rights of the purchaser saving and excepting the rights of ingress and egress reasonably necessary and sufficient to enable the purchaser to cut and remove the remaining timber to the tramway referred to in said timber deed dated May 15, 1922.' That was the deed hereinbefore mentioned executed by Howard Turpentine Company to C. B. Brim and others under which a 'license was given and granted' to them to enter upon the lands and to cut and remove the timber therefrom.

The amended bill was filed in this case on July 13, 1928, which was five months before the expiration of the first period for cutting and removing.

Now the Roux-Denton Lumber Company in August, 1923, assigned its interest under the agreement to S. B. Denton, E. T. Roux, and H. L. Askew, and on the same day Denton assigned his interest to Roux and Askew, who became partners under the name of Roux-Askew...