Tidwell v. H. H. Hitt Lumber Co.

• Decision Date: 21 December 1916
• Docket Number: 8 Div. 886
• Citation: 73 So. 486,198 Ala. 236
• Parties: TIDWELL v. H.H. HITT LUMBER CO. et al.
• Court: Alabama Supreme Court

73 So. 486

198 Ala. 236

TIDWELL v. H.H. HITT LUMBER CO. et al.

8 Div. 886

Supreme Court of Alabama

December 21, 1916

Appeal from Chancery Court, Limestone County; James E. Horton, Jr. Chancellor.

Suit by C. Wesley Tidwell against the H.H. Hitt Lumber Company and others to enjoin trespass on land. Decree for respondents and complainant appeals. Reversed and remanded.

Anderson C.J., and McClellan, J., dissenting.

W.R Walker, of Athens, for appellant.

Callahan & Harris, of Decatur, for appellees.

SAYRE J.

The facts shown by the bill in this cause may be stated as follows: Complainant, on the consideration of a large sum paid and to be paid, purchased the land from one Puryear on August 28, 1913, taking a deed with full warranty. This deed contained no reservation or exception of trees growing upon the land. Puryear had purchased the same land from one Ragsdale on March 19, 1912. The record of the conveyance from Ragsdale to Puryear is referred to but no copy thereof is exhibited with the bill. Complainant's deed shows that he was to have possession on or before January 1, 1914, and the averment of the amended bill is that he entered into possession on or about that date and has been continuously in possession ever since. The bill, filed July 15, 1915, avers that defendant company, notwithstanding it had been notified by complainant not to enter upon the land or cut any timber therefrom, did, on the day before its filing, enter upon the land and begin to cut timber, and has informed complainant that it intends to cut from the land all timber thereon, and upon information and belief it avers that Ragsdale sold the timber rights on said land to defendant, but that by the terms of that contract there was a time limit within which the timber was to be removed from the land, and that said time limit expired on or about January 1, 1913, whereupon all rights, licenses, and privileges of the defendant ceased and came to an end. Likewise upon information and belief it is averred that Puryear in January, 1913, made a contract with defendant, by the terms of which, in consideration that defendant would ditch and drain the land, defendant was to have 90 days in which to do the ditching and draining and to remove the timber therefrom, but that, by mistake, the contract was made to read that defendant should have 90 days from ditching and draining the land within which to remove the timber; and, further, if there was no mistake, defendant had only a reasonable time in which to ditch and drain the land and remove the timber, and defendant made no effort within a reasonable time to carry out the agreement, but did enter on the date aforesaid and begin to cut the timber. Complainant avers that he had no notice of said contracts at the time of his purchase; that defendant has both of them in its possession, wherefore he is without accurate information as to their contents, and must rely upon a discovery to prove their terms, conditions, and contents, to which end apt interrogatories are incorporated in the bill; that said contracts are clouds upon his title. Complainant prayed and procured the issuance of a temporary injunction. The prayer for final relief is that the Puryear contract be reformed, that all rights of defendants under the contract be decreed to have expired, that defendant be permanently enjoined from entering upon said lands and cutting any timber therefrom, and for an accounting for the damages already done to the land. The cause being submitted for decree on demurrer to the bill and on motion to dissolve the injunction, the demurrer was sustained and the injunction dissolved. Complainant appeals.

It is to be noted, in the first place, that complainant's purpose in this cause is not to have a disputed question of legal title to and possession of land determined on a bill to restrain alleged trespasses, as was the case in Kellar v. Bullington, 101 Ala. 267, 14 So. 466, for, as we have seen, complainant avers his title to and possession of the land--to speak of the land as distinguished from the trees growing upon it. And, whatever may ultimately prove to be the fact in respect of the title to the trees, complainant is in possession of them also under a claim of ownership. The question of controlling importance at this time is whether, in the circumstances stated, complainant is entitled to injunctive protection against the repeated trespasses threatened by defendant, its officers and agents, involving a complete destruction of the timber standing on the land. The chancellor makes it clear that he was influenced to decree against the bill by the opinion of this court in Hitt Lumber Co. v. Cullman Property Co., 189 Ala. 13, 66 So. 720. The decision in that case appears to have been determined by Deegan v. Neville, 127 Ala. 471, 29 So. 173, 85 Am.St.Rep. 137, and some observations of Chancellor Kent in Jerome v. Ross, 7 Johns. Ch. (N.Y.) 315; 11 Am.Dec. 484. We will, as briefly as may be, state the result of our further consideration of these cases.

Recurring to Kellar v. Bullington, to which we referred in the outset, and which was quoted in Hitt Lumber Co. v. Cullman Property Co., supra--in that case the defendants were in possession of the locus in quo, a quarry, working the same under a bona fide claim of ownership, when complainant acquired his title by a homestead entry; thereafter complainant established his homestead upon the land, about a quarter of a mile from the quarry, and then, without concurrently bringing an action at law to try the conflicting claims of title--pending which he would have been entitled to an injunction (Hamilton v. Brent Lumber Co., 127 Ala. 78, 28 So. 698)--complainant filed his bill to enjoin permanently the further quarrying of stone, and for an account and recovery of the value of the stone taken. While holding on the evidence, it is true, that, if every yard of stone were removed from complainant's land, payment to him of the fair value thereof, in money, would have afforded ample and adequate redress, the court, observing that the bill seemed to rest for its equity upon the mere conclusions of the pleader that a resort to equity was necessary to prevent irreparable injury and a multiplicity of suits, rather than any statement of facts to that effect, and noting that neither the bill nor the proof showed any displacement or disturbance of the actual adverse possession by which defendants held the quarry--in these circumstances the court appears to have laid the stress of its opinion upon the fact that defendants had a constitutional right to have the validity of their claim of title tried in an issue to the country, before being disturbed in their possession and use of the premises.

The decision in Deegan v. Neville rested upon peculiar facts. Complainant had a mere chattel interest in the premises he sought to have protected by injunction. He held the premises under the defendant, and only 37 days of his leasehold term remained at the time he filed his bill. He occupied the premises as a barroom "with yard privileges," and the trespasses most grievously complained of were alleged to have been committed upon the yard, making the use of it dangerous. Defendant was erecting a building upon his adjoining premises from which, day after day, his agents dropped broken bricks, dust, and other débris upon complainant's yard. The court found upon the evidence that the only use complainant made of the yard was to traverse it in going to and from a water-closet that did not belong to him under the terms of his lease, and in which he had no exclusive right, if he had any at all, as the court said. On this peculiar combination of facts, the court excluded two alleged grounds of equitable jurisdiction by saying that, "to make the injury or trespass a continuing one, it must be of such a character as that its recurrence is not dependent upon any act to be done by any person," and further that, to bring a case within the rule upon which equity acts for the prevention of a multiplicity of suits, "it must be shown that there are different persons assailing the same right 'and each standing on his own pretensions,' " herein harking back to Jerome v. Ross, supra. In the end the court held that complainant might have adequate compensation in an action at law for a breach of defendant's covenant for quiet enjoyment, and dissolved the preliminary injunction which had been granted in the court below.

From this statement of Kellar v. Bullington and Deegan v. Neville, it will be seen, we think, that the rulings in those cases, when due regard is had to the facts involved, may be thoroughly well justified without affirming that the owner in undisputed possession of land must stand by while a valuable part of his estate is converted into a mere chose in action by the repeated trespasses of a single person, or his agents, or that equity in such case is impotent to afford preventive relief.

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