Warren County v. Gans

• Decision Date: 14 October 1901
• Citation: 80 Miss. 76,31 So. 539
• Court: Mississippi Supreme Court
• Parties: WARREN COUNTY v. ALONZO P. GANS ET AL

31 So. 539

80 Miss. 76

WARREN COUNTY v. ALONZO P. GANS ET AL

Supreme Court of Mississippi

October 14, 1901

FROM the circuit court of Warren county. HON. OLIVER W. CATCHINGS Special Judge.

Warren county, appellant, was the plaintiff in the court below; Gans and others, appellees, were defendants there. From a judgment in favor of the defendants the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Judgment reversed and case remanded.

Magruder Bryson & Dabney, for appellant.

First. Appellant contends that the lessees had no right or authority, under their respective leases, to sell timber from the lands, and therefore the pretended sales to appellees were void, and gave no title to the logs.

Second. That if mistaken in the first contention, certainly said lessees could sell such timber only as it became necessary to remove, in order to clear as much of said land for cultivation as good husbandry might require, and that said tenants far exceeded the limitations of the rule in the case of the logs in question, and having done so, it was waste and the sales were void.

Third. Appellant contends further that the question of whether more trees were cut than good husbandry would require, was a question of fact for the jury, and it was therefore error for the court to grant a peremptory instruction for appellees.

The leases to the land in question were made under act of the legislature passed in February, 1833. See Laws 1883, p. 452. This act provides as follows:

"It shall be the duty of said trustee, on the final payment of the money which may be due, and not before, to convey the right, title, use, interest, and occupation of said sections or such parts as may be leased to the lessee or lessees for and during and until the full end and term of 99 years."

Section 19 of the act of 1824 pertaining to school lands (see Laws of 1824, p. 17), provides as follows:

"The trustee aforesaid shall carefully and faithfully preserve school lands, and the timber thereon, from all improper waste, and shall institute suits in any court having competent jurisdiction, against any person, or persons, tenants as well as other who may be found damaging, in any manner, the lands, timber, or improvements, reserving to tenants the full liberty of their several leases."

The act first quoted, viz., that of 1833, does not in terms repeal the act of 1824, and does not appear to us to be inconsistent with the same, so that we take it that both of the acts quoted from were in force at the time these leases were made, and that the leases were accordingly subject to their terms and provisions.

The word "title," as used in the second act, was not intended to give any greater right in regard to the use and occupation of the land than the ordinary common law lease for a term of years, and in fact to give it any broader meaning would be inconsistent with the other terms, viz., "right," "use," "interest and occupation." The fact is that the legislature had no power to authorize the sale of a greater interest. The title to the land was in the inhabitants of the township, and the legislature was powerless to divest them of it, as the state had no interest in the land except as such trustee. Construing this act with the section quoted from the act of 1824, it appears further that the legislature recognized the duty of protecting the lands from waste by a tenant or other person. Whatever rights the tenants may have to the use and occupation of the land, are such rights only as pertain to an ordinary lease for a term of years.

This being the case, the tenant had no right or interest to the growing timber on the land beyond the right to use the same for the building of houses and fences, and for fire wood, and had no right to destroy the same, except as such destruction became necessary for the purpose of clearing the land and preparing it for cultivation. The title to the timber was at all times in the person who owned the remainder, and not in the tenant. The tenants' only right was the right to use and enjoy the same, and not the right of ownership.

In this we do not deny the right of the lessee to appropriate a reasonable and proper porportion of the land for cultivation, and to that end to destroy the timber upon it, but we do deny that in the prosecution of such work he could convert the timber trees to his own use, except so much as became necessary for the proper fencing and housing of the land or for fire wood, and we contend further: That such trees as it became necessary to cut in order to improve the land, more than were necessary for the use of the tenant, as above stated, were the property of him who owned the remainder, and not of the tenant. Taylor on Landlord and Tenant (8th ed.), sec. 345; 28 Am. & Eng. Enc. Law (1st ed.), 870; Clarke v. Holden, 66 Am. Dec., 450; Clemens v. Steer (R. I.), 53 Am. Dec., 621; Jones' Lee & Co. v. Britton (N. C.), 4 L. R. A., 178; Brashear v. Macy, 3 Marsh (Ky.), 89; Buckley v. Dolbeare, 7 Conn. 232; Johnson v. Johnson, 18 N.H. 594.

Some courts have held that where the tenant has the right to clear the land, and for that purpose to cut and remove the timber, that all timber so cut may be sold by the tenant.

These decisions are limited to few states, and appear not to be well considered, though they are quoted with approval in 28 Am. & Eng. Enc. Law (1st ed.), 871.

It will be observed, however, that there is no limitation put on the amount that may be sold, but the limitations are put upon cutting, which is what good husbandry demands. Davis v. Gilliam, 5 Ird. (N. C.), 309; Davis v. Clark, 40 Mo. App., 515; Owens v. Hyde, 6 Yerger (Ky.), 334.

The foregoing texts and decisions put three limitations...