State v. Goodrich

• Decision Date: 23 December 1911
• Parties: STATE ex rel. COOPER et al. v. GOODRICH, Circuit Judge et al.
• Court: Missouri Supreme Court

142 S.W. 300

238 Mo. 720

STATE ex rel. COOPER et al. v. GOODRICH, Circuit Judge et al.

Supreme Court of Missouri.

December 23, 1911.

1. LOGS AND LOGGING (§ 3)—SALES OF GROWING TIMBER.

Growing timber as between grantor and grantee are parts of the land on which it is growing.

2. VENUE (§ 5)—ACTION INVOLVING TITLE TO LAND—SALE OF STANDING TIMBER— "REAL ESTATE."

A suit to enjoin defendant from interfering with plaintiff in his right to cut and remove standing timber does not involve title to or possession of real estate within Rev. St. 1909, § 1753, providing that suits for possession of real estate, or whereby title thereto may be affected, shall be brought in the county within which it is situate, and is properly brought in the county where the parties reside, though the land is situated in another county.

In Banc. Prohibition by the State, on the relation of Dorothy E. Cooper and others, against James E. Goodrich, Judge of the Circuit Court of Jackson County, and others, to prohibit further proceedings in a cause pending in court. Peremptory writ prayed for denied.

This suit involves but a single proposition of law; the facts being practically undisputed. The relators under an assignment of a contract made and entered into by and between one Allen and their assignors claim the right to continue the possession of and to cut and remove standing timber from a certain tract of land situate in Osage county, Mo. The title to the lands, some 3,000 acres, through mesne conveyance, became vested in the respondents Cooper et al. Since, however, there is no question raised regarding the purchase without notice, etc., we will put those conveyances aside. After Cooper et al. became the owners of the land, they objected, and prevented respondents from further entering, cutting, and removing said timber from said lands, which they had previously been doing without question. Thereupon the respondents instituted a suit in the circuit court of Jackson county, seeking to enjoin Cooper et al. from interfering with their rights of possession and right to cut and remove said timber. All of said parties were residents of Jackson county at the time of the institution of said injunction suit. After service was had upon the defendants Cooper et al. in that case, in proper time and in due form they challenged the jurisdiction of the circuit court of Jackson county to try and determine the same, upon the ground that the title to real estate was involved, for the reason that growing timber is a part of the land upon which it is grown, etc., and consequently such a suit under our statutes must be brought in the county where the land is situate. Upon an adverse ruling made by the court to the defendants Cooper et al., they applied to this court for a writ of prohibition, seeking to prohibit the respondents from further proceeding with the trial of said cause in the circuit court of Jackson county.

Halbert H. McCluer and O. E. Robinson, for relators. Warner, Dean, McLeod & Timmonds, for respondents.

WOODSON, J. (after stating the facts as above).

As previously stated, the only question presented by this record for determination is: Has the circuit court of Jackson county jurisdiction to try an injunction suit brought therein by the plaintiffs seeking to prevent the defendants therein from interfering with the rights of the former; that is, to continue to cut and remove standing timber from lands situate in Osage county?

The respondents affirm said jurisdiction, while relators deny it. If we correctly grasp the full meaning of relator's contention, it is this: That, in order to decide this case in favor of the respondents, this court must hold, first, that relators are entitled to the possession of the land mentioned for the purpose of cutting and removing the timber therefrom; and, second, that growing timber is not a part of the land upon which it is growing, and consequently is not real estate within the...