Turner Lumber Co. v. Robinson Land & Lumber Co.

• Decision Date: 16 December 1929
• Docket Number: 28153
• Citation: 155 Miss. 882,125 So. 86
• Parties: TURNER LUMBER CO. v. ROBINSON LAND & LUMBER CO
• Court: Mississippi Supreme Court

125 So. 86

155 Miss. 882

TURNER LUMBER CO. v. ROBINSON LAND & LUMBER CO

No. 28153

Supreme Court of Mississippi

December 16, 1929

Division A

1. APPEAL, AND ERROR. Appeal from judgment denying petition to condemn right of way for private railroad will be dismissed where owner had disposed of railroad pending appeal (Hemingway's Code 1927, section 8351).

Appeal from judgment denying petition to condemn right of way for private railroad will be dismissed, where owner pending appeal had disposed of railroad and had contracted with a third party obligating himself to make necessary extension of railroad for purpose of transporting timber, in that real necessity authorizing condemnation under Hemingway's 1927 Code, section 8351 (Laws 1920, chapter 259), must exist in favor of parties applying for the right to invade private property, and must exist at the time right is granted.

2. APPEAL AND ERROR. Matters occurring subsequent to judgment which operate to waive right of review are properly presented by plea in bar.

Matters occurring subsequent to a judgment which operate to waive the rights of party to have the judgment reviewed, or which show that the rights sought to be established by party appealing have ceased to exist, are properly presented by a plea in bar of the appeal.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Greene county HON. J. D. FATHEREE, Judge.

Condemnation proceeding by the Turner Lumber Company against the Robinson Land & Lumber Company. From a judgment dismissing the petition, plaintiff appeals. Plea in bar sustained, and appeal dismissed.

Plea in bar sustained, and appeal dismissed.

Currie, Stevens & Currie, of Hattiesburg, for appellant.

The appellee's plea in bar of the appeal should be overruled, because the brief of his counsel shows that his lands have been condemned by the Avera & Northeastern Railroad Company. If the Turner Lumber Company and the Avera & Northeastern Railroad Company have entered into the contracts mentioned, the rights involved would be between the Turner Lumber Company and the Avera & Northeastern Railroad Company and the appellee would in nowise be affected thereby.

Stevens & Heidelberg, of Hattiesburg, and Armbrecht & Hand, of Mobile, Ala., for appellee.

When the question involved in an appeal becomes a moot question, the appeal will not be heard in the supreme court. If the lack of necessity for passing upon the appeal does not appear of record, but exists because of after-developed facts, then, it should be raised by a plea in bar of appeal, and such plea thereupon will be sustained by the court and the appeal will be dismissed.

Kemper County v. Neville, 95 Miss. 56, 48 So. 727; McDaniel v. Hurt, 92 Miss. 197, 41 So. 381; Chicago Railroad Company v. Dey, 76 Iowa 276, 41 N.W. 17; State v. Kelly, 80 Miss. 803, 31 So. 901; Hughes v. Baughes, 140 Miss. 812, 106 So. 626; Keys v. Robinson, 144 Miss. 899, 110 So. 839; Adams v. Carter, 92 Miss. 578-579, 46 So. 59, 47 So. 409; Farmer v. Allen, 85 Miss. 672; McCaskey Register Company v. Swor, 122 So. 753; 4 Corpus Juris, page 589.

OPINION

Cook, J.

The appellant, Turner Lumber Company, filed a petition before the board of supervisors of Greene county, seeking to condemn a logging railroad right of way over lands of the Robinson Land & Lumber Company; the petition and proceedings being under the provisions of chapter 259 of the Laws of 1920, section 8351, Hemingway's 1927 Code. Upon the hearing of this petition the appellant was granted the right of way as particularly described in the petition, and thereupon an appeal was perfected to the circuit court; and upon the hearing of the matter in the circuit court, the order of the board of supervisors granting the right of way was reversed, and the petition dismissed; and from this judgment of the circuit court an appeal was prosecuted to this court.

The facts necessary to be stated for an understanding of the point upon which we base this decision are substantially as follows: At the time the petition to condemn the right of way was filed, the Turner Lumber Company, a corporation, was the owner of a sawmill plant located at Avera, in Greene county, Mississippi, and was likewise the owner of a private logging railroad, and certain timber and timber lands located in Greene county. The sawmill and railroad owned by the Turner Lumber Company were operated by the Turner Timber Company, a partnership composed of the stockholders of the Turner Lumber Company. The logging railroad extends several miles over the lands of the appellant, and at or near the terminus thereof the appellee owns a body of land which separates the lands of appellant, upon which the railroad is located, from other lands and timber owned by it some distance north of the railroad. It was to secure a right of way across the intervening lands belonging to the appellee that the petition was filed before the board of supervisors.

Shortly after perfecting this appeal from the judgment of the circuit court dismissing the petition to condemn a right of way under and by virtue of the provisions of the said chapter 259 of the Laws of 1920, section 8351, Hemingway's 1927 Code, the stockholders of the appellant lumber company obtained from the state of Mississippi a charter for the Avera & Northeastern Railroad Company; and after this charter was obtained, this railroad company began eminent domain proceedings in Greene county, seeking to condemn a right of way for the railroad corporation over the lands of the appellee, the right of way so sought to be condemned embracing and including the entire right of way involved in the original proceedings and in this appeal. After this condemnation proceeding was begun by the said Avera & Northeastern Railroad Company, the appellee filed a bill in the chancery court seeking to enjoin such proceeding. A temporary injunction was issued, and on the hearing of the injunction suit, it was developed in the testimony of Horace S. Turner, president of the appellant lumber company, that the appellant had conveyed by sale or lease the entire railroad owned by it, together with all rights of way and locomotives and cars constituting the equipment of said railroad, and that the said Turner Timber Company had acquired the right to cut the timber which it was desired to reach by means of the right of way sought to be condemned; and that the Turner Timber Company had contracted with the Avera & Northeastern Railroad Company to haul the timber over a line of railroad to be constructed by it from its present railroad to this timber.

After the development of the facts in reference to the conveyance of the railroad, and the contract of the railroad to transport the timber in question to the sawmill owned by the appellant and operated by the Turner Timber Company, the appellee filed in the cause pending in this court a plea in bar of the appeal, setting up that...