Sandy Holding Co. v. Ferro

• Decision Date: 03 October 1933
• Citation: 144 Or. 466,25 P.2d 561
• Parties: SANDY HOLDING CO. v. FERRO.
• Court: Oregon Supreme Court

25 P.2d 561

144 Or. 466

SANDY HOLDING CO. v. FERRO.

Supreme Court of Oregon

October 3, 1933

Department 2.

Appeal from Circuit Court, Clackamas County; Earl C. Latourette Judge.

Suit by the Sandy Holding Company against Mike Ferro. From an adverse decree, defendant appeals.

Modified and affirmed.

Leroy Lomax, of Portland (Lomax & Lomax, of Portland, on the brief), for appellant.

William Hammond, of Oregon City, for respondent.

BAILEY, Justice.

This suit was instituted on September 12, 1932, by Sandy Holding Company, a corporation, against Mike Ferro, to enjoin the defendant from removing cordwood from a quarter section of land owned by the plaintiff in Clackamas county, and to require the defendant to account for other cordwood alleged to have been wrongfully removed by him from said land.

A demurrer to the original complaint was sustained and an amended complaint was filed on September 29, 1932, to which after demurrer had been overruled, defendant filed his answer.

After the institution of this suit the defendant continued to remove cordwood from the premises until enjoined by the court on or about October 17 of that year.

On or about June 1, 1922, W. G. Weber, then the owner of this quarter section, by contract in writing sold to J. B. Jonsrud the right for a period of ten years, to June 1, 1932, to remove the timber from all of said tract of land except approximately seven acres. On June 16, 1928, Jonsrud and his wife and Roy Funk, who had some interest in the personal property, and the latter's wife, by written contract agreed to sell to one William Dippold the personal property located on said quarter section, and in addition granted to Dippold "the right to use, occupy and cut timber" from the said quarter section until June 1, 1932, provided Dippold paid the taxes for the year 1928 thereon and for every succeeding year that he might occupy the property.

Later all the right of Dippold in and to said contract was assigned to J. B. Jonsrud. On February 24, 1930, a similar contract was entered into between Jonsrud and M. Linden and Louis Pearson, operating under the name of L. & P. Lumber Company. Said contract was for the sale of personal property situated on the premises and granted the right until June 1 1932, to cut and remove the timber from the premises. Both of the foregoing assignments by Jonsrud of the right to remove the timber from said land were consented to by the Clackamas County Bank, then owner of said premises.

After the last-mentioned contract was executed, Linden and Pearson sold whatever right they had acquired to cut and remove the timber to Glenn Byer, who on April 15, 1930, sold the same to the defendant. There was, however, no written contract or assignment evidencing these two latter transactions.

On or about May 15, 1931, the Clackamas County Bank conveyed this tract of land to the Sandy Holding Company. Prior thereto J B. Jonsrud had transferred to the Clackamas County Bank all his right, title, and interest in and to the contract between himself and Linden and Pearson; and on March 1, 1932, the Clackamas County Bank transferred its right in said contract to the Sandy Holding Company.

The only right which defendant had to remove the timber from this land was by virtue of the contract between Jonsrud and Linden and Pearson, except as the same was modified by agreement between him and the plaintiff. It is the defendant's contention that the plaintiff herein had given him the right until December 1, 1932, or so much time thereafter as might be necessary, in which to remove from the premises the timber which had already been cut into cordwood, whereas the plaintiff asserts that the only extension granted was to August 1, 1932.

During the year 1931 the Clackamas County Bank several times called the defendant's attention to the fact that the taxes on the quarter section had not been paid according to the contract, and on June 11 of the same year advised the defendant that it had sold the property to the Sandy Holding Company, and that the defendant must furnish to that company a tax receipt covering the 1930 taxes.

On March 19, 1932, the plaintiff wrote to the defendant, calling his attention to the provision in the contract as to the payment of the taxes, and stating that one-half of the 1931 taxes would be delinquent after May 5, and that:

"Unless the 1931 taxes are paid by May 5, the contract for the timber will be void, and it will not be permissible to remove any timber after that date, and in event that the taxes are paid before that date, the contract definitely expires June 1st, 1932, and we are writing you at this time so that you will arrange to have all the wood off the premises at that date, as we contemplate selling the land at the very earliest possible date after June 1st.

"We ask that you arrange now to get all the wood off by May 5th unless you intend to pay the 1931 taxes and if you do pay the 1931 taxes then be certain to arrange for its removal completely by June 1st."

Later, on June 12 following, the plaintiff wrote to an attorney, who was presumed to represent the defendant, referring to an extension of time, and saying:

"This extension of time was conditioned upon the full payment of the 1931 taxes on the premises.

"We find that only the first one-half of such taxes has been paid. If Mike continues unto the first of August, he must supply us this week with a full paid tax receipt, covering the 1931 taxes on said premises."

On the same date a letter was written by the plaintiff to the defendant, stating that defendant would recall that the additional time to August 1, 1932, had been granted him to remove his cordwood from the premises on the understanding that he would pay all the 1931 taxes on the premises, and that unless a receipt was presented to plaintiff by July 16, showing that all the taxes had been paid, the plaintiff would stop the further removal of wood on the following Monday. The defendant was further advised that: "We wish to call your attention to the fact that under any consideration your time expires August 1st, and that there will be no chance to get an extension of time unless you desire to purchase the entire premises."

No error was committed by the trial court in overruling the demurrer to the amended complaint based on the ground that plaintiff had a speedy and adequate remedy at law, to wit, an action for damages for the value of the logs which the defendant converted to his own use. The amended complaint is not limited to recovery for the logs converted by the defendant. It alleges, among other things, that the plaintiff is the owner of the land and all timber situated thereon, also all cordwood, pulp wood, and other timber products which have been felled but not removed from the land; that the defendant has no right, title, or interest in or to the land, cordwood, pulp wood, or other timber products; and that said defendant had wrongfully and unlawfully removed cordwood and was threatening to continue to remove the same unless enjoined by the court. The prayer of the complaint is for an injunction against the defendant's removing cordwood from the premises, and for an accounting for such cordwood as had unlawfully been removed therefrom.

In the case of Anderson v. Miami Lumber Company, 59 Or. 149, 116 P. 1056, 1060, the plaintiff brought a suit to enjoin the defendant from removing from land owned by the plaintiff certain trees which had been cut into sawlogs and which had not been removed prior to the expiration of the contract. To the argument that a court of equity should not interfere in a case of that kind, this court answered: "There remains but one more question to be disposed of, namely, the objection that equity will not interfere in cases of this character, but will leave the plaintiff to his remedy at law. That equity will interfere to prevent a continuous trespass or repeated trespasses involving a multiplicity of suits is elementary. Its jurisdiction has been invoked in many of the cases of this character cited in this opinion, and is upheld in Roots v. Boring Junction Lumber Co., 50 Or. 298, 92 P. 811, 94 P. 182."

In Roots v. Boring Junction Lumber Co., 50 Or. 298, 92 P. 811, 817, 94 P. 182, this court quoted with approval from 2 Story, Eq. Jur. § 917, as follows: "The inadequacy of the remedy at common law, as well to prevent waste as to give redress for waste already committed, is unquestionable, and there is no wonder that the resort to the court of law has in a great measure fallen into disuse. *** The remedy by a bill in equity is so much more easy, expeditious, and complete that it is almost invariably resorted to. By such a bill not only may future waste be prevented, but, as we have already seen, an account may be decreed and a compensation given for past waste."

Having acquired jurisdiction to prevent the further removal of cordwood, the court could and should retain jurisdiction to require defendant to account for the cordwood removed. Sheridan v. McMullen, 12 Or. 150, 6 P. 497; Roots v. Boring Junction Lumber Co., supra.

The defendant further asserts that the time for removing the cordwood had been extended by the plaintiff. According to the defendant's story, Mr. Proctor, an officer of the plaintiff corporation, came to the quarter section about the middle of May, 1932. At that time there remained eight acres at standing timber which the defendant could, but had not yet, cut. Upon the agreement of the defendant to cease from cutting any more timber, and to build and improve roads on the premises the defendant was, according to his version granted by plaintiff until December 1, 1932, or such further time as might be necessary, in which to remove the timber already...