South Mississippi Elec. Power Ass'n v. J. F. Miller Timber Co., Inc.

• Decision Date: 26 May 1975
• Docket Number: No. 48078,48078
• Citation: 314 So.2d 346
• Parties: SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, a corporation v. J. F. MILLER TIMBER COMPANY, INC.
• Court: Mississippi Supreme Court

Page 346

314 So.2d 346

SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, a corporation v. J. F. MILLER TIMBER COMPANY, INC.

No. 48078.

Supreme Court of Mississippi.

May 26, 1975.

Rehearing Denied July 7, 1975.

John K. Keyes, Collins, J. O. Moss, Lucedale, for appellant.

Jack Parsons, Wiggins, William T. Bailey, Lucedale, for appellee.

Before GILLESPIE, ROBERTSON and SUGG, JJ.

GILLESPIE, Chief Justice.

This suit was filed in the Circuit Court of George County by J. F. Miller Timber Company, Inc., (Timber Company) against South Mississippi Electric Power Association (Power Association) to recover actual and statutory damages for cutting trees claimed to be owned by Timber Company. After a jury trial judgment was awarded Timber Company for $2,000 actual damages and $6,000 statutory damages. Power Association appealed.

The land on which the timber in question stood was owned by Mr. and Mrs. W. H. Albritton on December 10, 1970, when they deeded the property to their three children, James Daniel Albritton, Jack Henry Albritton, and Mary Elizabeth Albritton (hereinafter Remaindermen), and reserved a life estate 'in all of the above described property as long as they shall live.' On April 26, 1971, the Remaindermen executed a timber deed to Timber Company purporting to convey all merchantable timber on the lands involved in this suit, with the right to cut and remove the timber within eighteen months after the expiration of which time the timber reverted to grantors. Neither of the life tenants joined in the timber deed. On May 5, 1972, the Remaindermen and Mrs. W. H. Albritton, the surviving life tenant, executed to Power Association a right-of-way deed 100 feet wide across the land described in the timber deed, the deed providing that Power Association had the right to cut trees and keep the right-of-way cleared.

In July 1972, Power Association, in clearing the right-of-way under its deed from the Remaindermen and the life tenant, cut the trees on part of the lands described in the deed from the Remaindermen to Timber Company. It is not necessary to discuss the claim of Timber Company that the cutting was wilful or the contention of Power Association that it acted in good faith.

The question is whether Timber Company was entitled to recover from Power Association the value of the timber and the statutory damages.

Mississippi Code 1972 Annotated section 95-5-3 provides in part as follows:

If any person shall cut down, deaden, destroy or take away, if already cut or fallen, any (certain tree species enumerated) . . . not his own, without the consent of the owner, he shall pay to the owner of the tree or trees, as a penalty, fifteen dollars ($15.00) for every such tree so cut down, deadened, destroyed or taken away . . ..

This statute is a part of the chapter on trespass.

The general rule is stated in 51 Am.Jur.2d, Life Tenants and Remaindermen, section 2 (1970), as follows:

In determining the rights and remedies of a remainderman, the best guide is to consider the nature of his estate and that of the tenant of the particular estate which must terminate before the remaindermen can come rightfully into the possession of the property. As a general rule, the tenant and the remainderman are not at the same time entitled to the same right or remedy. A remainderman has no right of possession until the particular estate is terminated. He has no right of action, which depends upon the right of possession, until he is entitled to the possession, either to recover the possession or to obtain compensation for injuries to the possession. Hence, he cannot, before the termination of the life or other particular estate, maintain an action of ejectment, of trespass, of conversion, or for partition, except where there are special statutory provisions permitting him to do so.

In 51 Am.Jur.2d, Life Tenants and Remaindermen, section 32 (1970), it is stated:

The principle is well settled that a life tenant who is the holder of a present estate for life in real property is entitled to the possession and use of the property. Thus it has been held that a devise of real estate for life, with remainder over, is always to be treated as a specific devise, of which the tenant for life is to have the possession, use, and income during life. During an ordinary life...