Stark & Oldham Bros. Lumber Co. v. Burford
| Decision Date | 15 April 1926 |
| Docket Number | 2 Div. 891 |
| Citation | 109 So. 148,215 Ala. 68 |
| Parties | STARK & OLDHAM BROS. LUMBER CO. v. BURFORD. |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1926
Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.
Action by J.B. Burford against the Stark & Oldham Bros. Lumber Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.
Gray & Dansby, of Butler, and John S. Tilley, of Montgomery, for appellant.
J.D Lindsey, of Butler, and Rushton, Crenshaw & Rushton, of Montgomery, for appellee.
This is a suit by J.B. Burford against Stark & Oldham Bros. Lumber Company, a corporation, for damages for trespass to land of plaintiff. There was judgment for plaintiff based on a verdict of the jury, and the defendant prosecutes this appeal from it.
Two counts of the complaint were submitted by the court to the jury. One is for damages for trespassing upon a certain 40 acres of land of plaintiff, and cutting and removing therefrom certain timber thereon; and the other count claims the statutory penalty for knowingly and willfully entering upon his land without his consent, and cutting and removing certain trees therefrom.
The defendant pleaded general issue, tender, that the timber was cut by defendant as assignee under a contract made by plaintiff with one Williams, and that this timber was cut by defendant with permission of plaintiff under a timber deed contract made by plaintiff with one Williams, which had been transferred to, and belonged to, defendant. The sufficiency of the pleas is not questioned by demurrer. Moss v. King, 186 Ala. 475, 65 So. 180; Coley v. English, 209 Ala. 688, 96 So. 909, headnote 2, and authorities therein cited.
The complaint described 40 acres of land. The evidence was without dispute that plaintiff owned this land. The plaintiff and his wife, by deed dated October 4, 1919, sold and conveyed to F.W. Williams "all the merchantable timber eight inches and up standing, lying or being upon certain lands"--several hundred acres--particularly described therein, including the 40 acres in question situated in part in Choctaw county, Ala., and a part in Wayne county, Miss. This timber was then sold by Williams to the Turkey Creek Mill Company. This mill company sold it to Stark, and Stark sold it to the defendant. These deeds were all executed and delivered by the different parties, and appear in the bill of exceptions. The original deed executed by the plaintiff granted to the grantee and his assigns "the exclusive right to enter upon said lands for the purpose of cutting and removing said timber at any time within the period of five years from and after the date hereof." It also gave the grantee and assigns right to maintain on said land roadways, bridges, tramroads, sawmills, etc., and also at the expiration of the said five years the right to remove from said lands all equipment and property of every kind that may have been placed thereon by the said F.W. Williams, his heirs or assigns, for the purpose of manufacturing or removing said timber.
The dispute between the parties arose over the cutting and removing of certain timber from this 40 acres by the defendant after the time limit--five years. The defendant, by its servants, entered upon this land after October 5, 1924, and before Christmas of that year, and cut and removed certain timber from it.
The original deed made by plaintiff to Williams, through which defendant claims this timber, contains this provision:
"If said timber shall not be removed from said lands within the time specified above, then and in that event the grantor herein for himself, his heirs and assigns, does hereby covenant and agree to and with the grantee herein for himself, heirs and assigns, to extend the time in which to cut and remove said timber from year to year until the said timber shall be cut and removed, provided the grantee herein his heirs or assigns shall pay the additional sum of 50 cents per acre for each year after the expiration of the said period of five years for each acre from which the timber shall not have been removed until said timber shall have been removed; and the said grantee, his heirs and assigns shall have a reasonable time in which to remove all equipment and property placed on said lands by them after the said timber shall have been cut and removed pursuant to any such extension of time."
The evidence of the defendant tended to show that in July or August, 1924, it and the plaintiff agreed that they were to jointly determine the number of acres uncut, and the defendant would pay the 50 cents per acre for the extension under the contract whenever plaintiff came to the office for it, and defendant stated "that would be perfectly satisfactory." The plaintiff denied that this conversation was ever had, and stated that no such agreement was ever made by him. The evidence tended to show that the plaintiff claimed there were 80 acres of uncut timber land on October 5, 1924. The evidence for the defendant tended to show that, after October 4, 1924, and shortly after this timber in question was cut in the fall of 1924, it tendered at one time to plaintiff $20, at another time an $80 check, and at another time $100 in cash to secure the year's extension, and in accordance with their agreement and the contract, and the plaintiff refused to accept it. The evidence of the plaintiff was, to the contrary, that no tender was made to him, except the $20; $20 in gold was deposited in court with the tender plea.
There was evidence tending to show the damage to the land was $100, and the trees removed were worth about $160, and the small trees destroyed about $75, in removing the large timber.
There was approved on September 30, 1919, an act of the Legislature, section 4 of which (Gen.Acts 1919, p. 836, which is now the same as section 6959, Code of 1923), reads as follows:
"In all conveyances of standing timber by deed or other instrument, unless otherwise provided in said deed or other instrument, the title to all timber not cut and removed within ten years from the date of the deed or other instrument conveying the same, or at the expiration of the time limit agreed upon by the parties, shall revert to the grantor or grantors."
It was approved prior to the execution, on October 4, 1919, of the deed conveying the timber from plaintiff to Williams. It affects no ruling or charge of the court presented for review.
The court did not err in permitting plaintiff to prove how many merchantable trees were cut on this land after October 5, 1924, by the defendant, and the fair market value of that timber at that time. This was material testimony under the issues. Market value is in the nature of opinion evidence, and any person who has had an opportunity for forming a correct opinion may testify on the subject. Section 7656, Code of 1923. It is true the court at first did not allow proof of tender to plaintiff by defendant after October 4, 1924, but afterwards such proof was admitted by the court. The plaintiff denied that tenders were made, except one, and the court permitted the defendant to prove every offer of payment for extension of the time to cut under the agreement in August, 1924, whether the payment offered was in cash or by check. If the court erred in its first ruling, it was afterwards cured by allowing this testimony to be introduced. We find no ruling on the admission or exclusion of evidence by the court at which the defendant can complain.
The general affirmative charge as to each count, with hypothesis in favor of the defendant, was requested in writing, and refused by the court. In this there was no error. The scintilla of evidence rule prevails in this state. There was evidence tending to prove the averments of each...
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