Sikes v. Turner

• Decision Date: 29 January 1923
• Docket Number: No. 3249.,3249.
• Citation: 247 S.W. 803,212 Mo. App. 419
• Parties: SIKES et al. v. TURNER et al.
• Court: Missouri Court of Appeals

247 S.W. 803

212 Mo. App. 419

SIKES et al. v. TURNER et al.

No. 3249.

Springfield Court of Appeals. Missouri.

January 29, 1923.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Suit by A. C. Sikes and another against George A. Turner, on whose death the cause was revived, in the Supreme Court, in the names of Effie Turner and another, administrators of deceased's estate. Judgment for plaintiffs, and defendants appeal. Transferred from Supreme Court (242 S. W. 940). Affirmed.

O. A. Knehans and Oliver & Oliver, all of Cape Girardeau, for appellants.

R. E. Bailey, of Sikeston, for respondents.

BRADLEY, J.

A. C. Sikes and O. E. Kendall, Jr., filed their petition praying for an injunction to enjoin George A. Turner, doing business under the name of Cape Handle Company, from cutting timber on the south half of section 7, township 23, range 13, in New Madrid county. At the same time A. C. Sikes filed his petition against Turner to enjoin the cutting of timber on the north half of said section. Temporary restraining orders were issued in each cause. At the return term of court the two suits were consolidated and tried as one, resulting in the injunctions being made perpetual. Defendant appealed to the Supreme Court. At the April term, 1921, of the Supreme Court, the death of defendant Turner was suggested, and the cause revived in the name of his administrators. The Supreme Court ruled that title was not involved in such a way as to give the Supreme Court jurisdiction, and transferred the cause to this court. Sikes et al. v. Turner et al., 242 S. W. 940.

For convenience we will use the term defendant as having reference to Turner. In the original petitions it is alleged that defendant was trespassing upon the land, cutting and removing the timber therefrom with out any right or authority, and that such trespass would result in irreparable injury "for the reason that defendant is not financially responsible, is insolvent, and cannot be made to respond in damages therefor," and that plaintiffs have no adequate remedy at law. The answer was a general denial. The cause was tried on the issues thus made. The evidence was in on June 4, 1919, and the court took the cause under advisement. Defendant filed briefs with the trial court on June 13th. On June 16th plaintiffs asked and were granted leave to amend their petitions, and over objection and exception plaintiffs amended by eliminating that portion quoted, supra, beginning "for the reason that," etc., and substituted therefor the following: "That a multiplicity of actions would result from an attempt by plaintiffs to vindicate their rights to the timber in question otherwise than by injunction," and then it is alleged that plaintiffs have no adequate remedy at law.

On August 22, 1917, A. G. Kendall, admitted as the common source of title, conveyed to defendant by what is designated as a "timber deed" all of the timber on said section 7 except the post timber. By this timber deed defendant was required to remove the timber by July 12, 1919, On March 9, 1918, this time limit was extended to December 31, 1919. On March 18, 1918, plaintiff Sikes entered into a contract with J. B. Stubblefield, who had purchased from A. G. Kendall, whereby plaintiff Sikes became the owner of the north half of said section, "subject to a certain timber contract expiring January 1, 1919." On March 22, 1918, Stubblefield, Sikes, Porter Kendall, and O. E. Kendall, Jr., entered into a contract whereby Sikes, Porter Kendall, and O. E. Kendall, Jr., became the owners of the south half of said section 7, "subject to a certain timber contract expiring January 1, 1919." On April 16, 1918, Stubblefield conveyed by warranty deed the south half of said section 7 to A. C. Sikes, Porter Kendall, and O. E. Kendall, Jr. On November 18, 1918, Porter Kendall conveyed by warranty deed his undivided one-third interest in the south half of said section 7 to plaintiffs A. C. Sikes and O. E. Kendall, Jr. These warranty deeds were promptly recorded, but the timber contract and its extension were not recorded. The warranty deed from A. G. Kendall to Stubblefield conveying the whole of said section 7 was made subject to "a certain timber contract expiring January 1, 1919."

As we read this record, there are but three propositions for disposition: First. Will injunction lie? Second. Lid plaintiffs have such notice of the timber deed of August 22, 1917, from A. G. Kendall to defendant, and its extension on March 9, 1918, as to preclude their enjoining defendant from cutting and removing the timber? Third. Was any prejudicial error committed in permitting the petitions to be amended?

(1) Will injunction lie? Defendant makes the point that injunction will not lie because the title to the timber is in dispute. In Palmer v. Crisle, 92 Mo. App. 510, it was held that the law does not require that a person shall submit to the stripping of his timber land of its forest trees and then attempt to make his loss good by an action for damages; that the nature of the property involved and the inconvenience of suing for continuous trespasses constitute a basis for equitable relief. Section 3649, R. S. 1899, now section 1969, R. S. 1919; McPike v. West, 71 Mo. 199; Turner v. Stewart, 78 Mo. 480; Echelkamp v. Schrader, 45 Mo. 505; and Heman v. Wade, 74 Mo. App. 339, are cited in support of the rule announced in Palmer v. Crisle. The same doctrine was followed by this court in Barron v. Cooperage Co., 185 Mo. App. 625, 171 S. W. 683, and in other cases there cited. Also in Teachout v. Clough, 143 Mo. App. 474, 127 S. W. 672, this court followed the Palmer Case. Judge Nixon, in the Teachout Case, quoted with approval the general rule from 22 Cyc. 832, as follows:

"The general rule is that the cutting of timber is such a destruction to the inheritance as will cause a court of equity to interfere to restrain the trespass."

As appears in Palmer v. Crisle and Teachout v. Clough, supra, the title to the timber was as much in dispute as here, yet injunctive relief was granted. The Supreme Court ruled that there was no such title in dispute as to give them jurisdiction of this cause. On the authority of the Palmer Case and Teachont Case it would seem that injunction will lie under the facts of the instant case so far as the question of title is concerned, and we so rule.

Defendant makes the further contention that plaintiffs were not in possession, but on the contrary that defendant was in possession, and for that reason injunction will not lie. The record does not establish that any one was in possession. Section 7 was unfenced, wild, and uncultivated land. Defendant entered thereupon and established logging camps, but claimed no rights except the right to enter for the purpose of removing the timber. In Teachout v. Clough, supra, the possession of defendant and the lack of possession by the plaintiff were much more pronounced than in the instant case, yet injunctive relief was granted. We think that the more recent rule with respect to the propositions here presented are given effect and recognition in the Palmer and Teachout Cases. We hold, therefore, that, since neither plaintiffs nor defendant was in possession, plaintiffs' lack of possession will not bar injunctive relief.

(2) Did plaintiffs have such notice of defendant's timber contract and extension as to preclude their enjoining defendant from cutting and removing the timber? Defendant's right to the timber by his original timber deed from A. G. Kendall on August 22, 1917, expired on July 12, 1919, according to the terms of the instrument. This time limit, however, was extended to expire December 31, 1919. Defendant failed to record either the original timber deed or the extension. In March, 1918, plaintiffs contracted for, and on April 16, thereafter, warranty deeds were executed conveying the fee to plaintiffs. Plaintiffs purchased subject to "a certain timber contract expiring January 1, 1919." Defendant's...