Rowland v. Arkansas Lumber Company
| Decision Date | 29 May 1916 |
| Docket Number | 21 |
| Parties | ROWLAND v. ARKANSAS LUMBER COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Bradley Circuit Court; Turner Butler, Judge; affirmed.
Judgment affirmed.
Mahony & Mahony and H. S. Powell for appellants.
1. The company having failed to cut and remove the timber expeditiously, forfeited all rights, and plaintiffs were entitled to recover for all timber cut after the notice was given. Plaintiffs instructions 1 and 2 should have been given without modification. The court erred in giving defendant's request No. 2. No time was specified in the contract and hence appellee had only a reasonable time to cut and remove the timber. 99 Ark. 112; 120 Ark. 165; 118 Ark 94; 111 Ark. 253.
Fred L Purcell and B. L. Herring for appellee.
The law was correctly declared in the court's charge to the jury and the verdict is sustained by the evidence. Appellee used this expedition in removing the timber. 118 Ark. 94; 120 Ark 105; 99 Ark. 112; 111 Id. 253; 116 Id. 393.
R. E. Rowland and Mrs. R. B. Byrd sued the Arkansas Lumber Company for the value of certain timber which they alleged the lumber company wrongfully cut and removed from their lands in Bradley County, Arkansas. The lumber company admitted cutting and removing the timber, but as a defense to the action stated that it was the owner of the timber. The case was tried before a jury which returned a verdict for the defendant and from the judgment rendered the plaintiffs have appealed.
The material facts are as follows:
In March, 1910, the Arkansas Lumber Company was duly organized as a corporation under the law of the State of Arkansas, and it took over the lumber mill of Crannell & Leavitt at Warren, Arkansas. The mill at that time, had a capacity of about 80,000 feet. The capacity of the mill was increased by the defendant company until in 1905, it had a capacity of 150 or 160 thousand feet per day. The defendant also took over from Crannell & Leavitt a log road which extended something over two miles west from Warren. At that time the only railroads in Bradley County were a branch road of the St. Louis, Iron Mountain & Southern, extending from Dermott to Warren and the log road just mentioned. On the 23d day of August, 1901, R. B. Byrd, by deed, conveyed to the Arkansas Lumber Company all the pine timber on about 176 acres of land owned by her in the western part of Bradley County, Arkansas. The deed provides that the lumber company "shall cut and remove said timber as expeditiously as possible and it is agreed that unless it shall have removed all the same within a period of 15 years from the date thereof, it shall be responsible for and pay to the first party the full amount of taxes assessed against said lands after the expiration of said period of 15 years from this date until such time as said timber is removed and said possession returned said first party."
The defendant company began constructing its log road westward, cutting the timber and logging its mill as it proceeded, and was so doing at the time it bought the timber from Mrs. Byrd. In 1905 the defendant had constructed its railroad to a point about 11 or 12 miles west of its mill. During the year 1906, the Rock Island Railroad Company constructed its line of railroad through Bradley County from the northwest to the southeast corner thereof. The defendant extended its log road to Banks to connect there with the Rock Island Railroad. Banks was the nearest point on the Rock Island Railroad to Warren. The log road was then 15 or 16 miles long and was incorporated as the Warren & Ouachita Valley Railroad. The timber in controversy was situated south of Banks and at its nearest point was four and one-half miles from the Rock Island Railroad. At this point it was necessary to cross the L'Aigles which were marshy lands a mile and one-half wide so that it was impracticable to haul timber across them, and it would also be very expensive to build a log road across it.
The Southern Lumber Company was also located at Warren and owned timber in the western part of Bradley County. In 1907 the defendant and the Southern Lumber Company commenced to build a log road south from the western terminus of the road of the defendant near Banks and by the first of January, 1911, it had established a camp about two and one-half miles from the Byrd timber. The Byrd timber was on the west side of the L'Aigles but the defendant owned other timber on the east side thereof. The road built by the defendant and the Southern Lumber Company is known as the A. & S. Railroad. While it was being built, the defendant operated from a station on the Rock Island Railroad and built spurs out into the timber owned by it on the east side of the L'Aigles and operated there.
According to the testimony of the plaintiffs, the A. & S. road was within two and one-half miles of the Byrd timber, sometime in 1910, or at least by the first part of 1911. It may be fairly inferred from the testimony of the plaintiffs' witnesses that it was practicable for the defendant to have cut and removed the timber from the Byrd land in the latter part of 1910 or during the early part of the year 1911. We need not abstract the plaintiffs' testimony on this point because the verdict of the jury was in favor of the defendant and in testing the sufficiency of the evidence to support the verdict, it must be viewed in the light most favorable to the defendant.
According to the testimony of the defendant, the A. & S. road from the point where it left the W. & O. V. Railway was constructed through territory where the defendant had no timber. That was one of the reasons which prompted it to go to Vick a station on the Rock Island railroad and operate from there while the A. & S. road was being constructed. Vick was situated too far from the timber in question to make it practicable to build a spur from there to it. The spur would have to run through several miles of territory where the defendant had no timber and this would be so expensive that it would not pay the defendant to build the spur.
After it had cut all the timber which it had in the territory near to Vick, the defendant moved to a temporary camp at the end of the A. & S. road which was nearly completed. This was in the latter part of January, 1911. The usual log haul is from one-quarter to a half-mile. The proper way to operate is for the mill company to build the spur through the timber and work back. As soon as a permanent camp was completed at the end of the A. & S. road about seven and one-half miles south of the temporary camp, the temporary camp was abandoned and the permanent one established, and operations carried on from there.
When the permanent camp was established, spurs were extended out from it in every direction as fast as possible and the Byrd timber was reached in the latter part of 1912 and most of it cut then.
Mrs. Byrd executed a deed to R. E. Rowland to the timber in controversy on November 20, 1912. Under this state of the record we think the testimony was legally sufficient to support the verdict. The mill of the defendant was operated at full capacity from the time it purchased the timber until it cut and removed it, except for a short time while it was being rebuilt after having been burned.
It is true, some of the timber which had fallen down and also a small part of the other timber on the Byrd land was cut several years before by other mill owners under contract with the defendant, but the defendant had the right to cut the timber itself and was not required to assign its rights under the contract in order that the timber might be cut earlier. It is also true that a temporary camp was established within two and one-half miles of the timber in the latter part of 1910 or at least the first part of 1911, but according to the testimony of the defendant, this was only done in order to keep the...
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