Watson v. Adams

• Decision Date: 26 January 1904
• Citation: 69 N.E. 696,32 Ind.App. 281
• Parties: WATSON v. ADAMS.
• Court: Indiana Appellate Court

32 Ind.App. 281

69 N.E. 696

WATSON

v.ADAMS.

Appellate Court of Indiana, Division No. 2.

Jan. 26, 1904.

Appeal from Circuit Court, Clark County; James K. Marsh, Judge.

Suit by Samuel F. Adams against David Watson. From a decree in favor of plaintiff, defendant appeals. Reversed.

George H. Voigt and John W. Baldwin, for appellant. E. C. Hughes and M. Z. Stannard, for appellee.

COMSTOCK, J.

Samuel F. Adams, the appellee, sought to enjoin David Watson, the appellant, from cutting growing timber on the lands of appellee. Upon the filing of appellee's complaint, a temporary restraining order was issued. The complaint alleges that appellee is the owner of a tract of land containing 75 acres, and that appellant wrongfully, and without license or consent of appellee, entered upon the land and was cutting and removing growing timber, which would permanently injure the real estate, and for which appellee could not be compensated in damages. The complaint asks for a temporary restraining order and a perpetual injunction upon a final hearing. Issue was joined upon the general denial. The court found for the appellee, and entered an order and judgment perpetually enjoining appellant from cutting and removing the timber.

Appellant assigns errors of the court: (1) In overruling the demurrer to the complaint. (2) In refusing appellant leave to file a second paragraph of answer. (3) In overruling appellant's motion for a new trial.

The motion for a new trial assigns the following grounds: (1) The decision of the court is not sustained by sufficient evidence. (2) The decision of the court is contrary to law. (3) The court erred in refusing appellant leave to file a second paragraph of answer. (4) Irregularity in the proceedings in this: that appellee's attorneys, in violation of the order of court, failed to give appellant's attorneys a copy of their brief.

The following is substantially a statement of the facts: In December, 1898, at the time the contract was made, the appellee, Adams, was the owner of the tract of real estate described in the complaint. On this tract of land there was about 12 acres of rough timber. In December, 1898, Adams, desiring to clear out the land, orally agreed to sell said timber to the appellant, Watson, for the sum of $50. Watson was to have all the timber, except such of the tops of the trees as Adams might desire for wood. And it was agreed that Watson was to cut and remove the timber within one year from the date of the contract, which, as stated, was December, 1898. The contract was in parol. Concurrent with the transaction for the sale of the timber, Watson made a contract with Adams to furnish the latter with lumber to build a barn, at the agreed price of $8.50 per thousand feet, and Adams agreed to accept the equivalent of the $50 for the timber in lumber at the price stated. The lumber was furnished, over two-thirds of which Watson obtained from the 12-acre tract, and settlement made. In settlement for the lumber the $50 was taken in consideration, and Adams gave Watson two mules and paid him $90 in cash. This closed the transaction, except that Watson had until the end of the contract year to remove the remnant, which was less than one-third of the growing timber on the $50 tract. The time limit on the contract for the sale of the trees expired in December, 1899. In June, 1900, Watson entered upon appellee's premises, and began to cut and remove a part of said remnant of timber. Appellee then forbade his cutting and removing said timber and entering said premises. On the 27th day of August, 1900, the appellant again entered and began to cut the timber, and this action was brought to enjoin him.

That a contract for the sale of growing timber is a contract for the sale of an interest in land, and must be in writing in order to bind either party; that standing trees may be the subject of a sale so as to give the purchaser a license to go upon the land to cut and remove them-are propositions not controverted in the appeal. It is claimed, however, by appellee that such license is revocable at the pleasure of the vendor at any time before it is acted upon by the vendee, citing Hostetter v. Auman, 119 Ind. 7, 20 N. E. 506;Owens v. Lewis, 46 Ind. 488-519, 15 Am. Rep. 295;Terrell v. Frazier, 79 Ind. 475;Cool v. Peters Box Co., 87 Ind. 531;Spacy v. Evans, 152 Ind. 431, 432, 52 N. E. 605;Hodgkins v. Farrington (Mass.) 22 N. E. 73. 5 L. R. A. 209-212, 15 Am. St. Rep. 168;Pifer v. Brown (W. Va.) 27 S. E. 399, 49 L. R. A. 497, 500, 503, 526;Bruley v. Garvin (Wis.) 81 N. W. 1038, 48 L. R. A. 839, 840; 18 A. & E. of Law, pp. 1140-1142. The cases cited do not hold that the license may be revoked when it has been acted upon and the consideration for which has been performed, nor whether part performance of the contract takes the sale of the timber out of the operation of the statute of frauds. The following cases hold that a parol license to cut timber upon the lands of another which has been acted upon and which is granted upon a consideration that has been performed cannot be revoked. Miller v. State, 39 Ind. 267;Messick v. Midland, etc., Co., 128 Ind. 81, 27 N. E. 419;Buchanan v. Logansport, etc., Co., 71 Ind. 265;Lane v. Miller, 27 Ind. 534;Saucer v. Keller, 129 Ind. 475, 28 N. E. 1117;Buck v. Foster, 147 Ind. 530, 46 N. E. 920, 62 Am. St. Rep. 427.

Appellee contends that under the contract there was a time limit given for the removal of the trees, and after its expiration appellant had no right to enter upon his land. Upon the question of the right of the vendee to cut timber after the expiration of the limit where the contract does not provide for a forfeiture, the decisions of the courts of other states are not in harmony. The following hold that the right ceases with the expiration of the time limit: Pease v. Gibson, 6 Me. 84;Howard v. Lincoln, 13 Me. 123;Saltonstall v. Little, 90 Pa. 422, 35 Am. Rep. 683;Utley v. Wilcox Lumber Co., 59 Mich. 263, 26 N. W. 488;Gamble v. Gates, 92 Mich. 510, 52 N. W. 941;Macomber v. Detroit & Co. (Mich.) 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713. In Irons v. Webb, 32 Am. Rep. 193, it was held the other way. In Jones v. Robbins, 29 Me. 351, 1 Am. Rep. 593, in a bond to convey land upon the payment of a note, time was held not to be of the essence of the contract, unless the parties have expressly agreed that it shall be so regarded. In Halstead v. Jessup, 150 Ind. 85, 49 N. E. 821, a case in which, in a contract of sale, the purchaser of...