Wisconsin-Alabama Lumber Co. v. Sewell
| Decision Date | 09 April 1931 |
| Docket Number | 5 Div. 66. |
| Citation | 134 So. 9,222 Ala. 696 |
| Parties | WISCONSIN-ALABAMA LUMBER CO. v. SEWELL. |
| Court | Alabama Supreme Court |
Rehearing Denied April 30, 1931.
Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.
Bill in equity by the Wisconsin-Alabama Lumber Company against Walter M. Sewell. From a decree sustaining a demurrer to the bill complainant appeals.
Reversed rendered, and remanded.
Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.
Pruet & Glass, of Ashland, for appellee.
It is well settled by the decisions of this court that the deed, Exhibit A to the bill of complaint, and under which the complainant claims title to the timber, conveyed the absolute title to the timber which did not revert to the grantor and was not lost to the grantee by a failure to cut and remove same from the land within the period fixed by the deed. C. W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58; Mt. Vernon Lumber Co. v. Shepard et al., 180 Ala. 148, 60 So. 825; Vizard v. Robinson, 181 Ala. 349, 61 So. 959; Wright v. Bentley Lumber Co. et al., 186 Ala. 616, 65 So. 353; West v. Maddox et al., 193 Ala. 612, 69 So. 101. It must be borne in mind that this deed was made in 1902 and is not controlled by subsequent statutes as codified in the Code of 1923.
The deed, however, conveyed only the merchantable timber on the land at the date of its execution and did not include or extend to timber not then merchantable, but which may have become so in the future. Wright v. Bentley Lumber Co. et al., 186 Ala. 616, 65 So. 353. It is therefore incumbent upon the complainant, in order to establish ownership to the timber, to aver and prove that what is being removed and marketed was merchantable when the deed was made in 1902. The bill avers ownership, and, if defective for failing to charge that the timber was merchantable as of said date, there is no ground of demurrer as to this defect.
While this court has uniformly given these timber deeds the above-mentioned construction, it seems to have denied the owner of the timber any legal remedy thus far pursued to get the timber after the expiration of the time limit for cutting and removing same.
In the case of Long v. Nadawah Lumber Co., 202 Ala. 523, 81 So. 25, the court held that the owner of the timber could not maintain trover against the owner of the land for converting the timber. The present writer did not agree to this, and I still think that, while the owner of the land had the right to clear the same and remove the timber therefrom, yet, if he disposed of it or converted it to any particular use, trover would lie in favor of the owner of the timber, but the majority of the court held otherwise, and the present bill removes all doubt, even if there be the existence of a legal remedy by charging the insolvency of the respondent.
In the case of Ward v. Moore, 180 Ala. 403, 61 So. 303, the court held that the owner of the timber could not maintain ejectment.
There is a broad statement in the case of Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129, that ejectment may be maintained to recover timber standing and growing upon the land, but, whether this statement was sound or not, the complainant in that case was the owner of the land and had the right to maintain ejectment against one who was in possession of same under a claim to own the timber, and such was the case quoted from. Bolland v. O'Neal, 81 Minn. 15, 83 N.W. 471, 83 Am. St. Rep. 362. The case of Christopher v. Curtis-Attalla Co., 175 Ala. 484, 57 So. 837, was an action of ejectment, but this particular question seems not to have been considered or decided, but it merely cites the case of Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776. In this Bingham Case, supra, the action of ejectment was by the owner of the land against one in possession under a timber claim, just as the Minnesota case, supra. At any rate, this identical question was decided in the case of Ward v. Moore, supra.
As we understand, the owner of the land is under no duty to bear the burden of the timber after the vendee's time for removing same has expired, and should be permitted to clear his land by cutting the timber and getting it out of the way, but the bill avers that this is not being done for the purpose of cultivating or utilizing the land, but for marketing and selling the timber. We do not understand that the relationship between these parties is such that would invoke the rule against an equitable waste, as the owner of the land expressly limited the vendee's right to come upon his land and remove the timber, and it would be inequitable and unjust to hold that he must be deprived of the use and benefit of his land for the purpose of growing and preserving the timber of another which should have been removed within the time limit. On the other hand, it would be equally as unjust and inequitable to permit the owner of the land to convert to his own use the property of another or to so destroy the timber of the complainant which is not essential to the legitimate exercise of the right to enjoy the use of the land. Lyon v. Hunt, 11 Ala. 295, 46 Am. Dec. 216.
We think the bill contains equity as to injunctive relief against the converting of the timber into lumber and the disposing of same, and, if there is an appreciable amount of lumber in the hands of the respondent, the trial court could well appoint a receiver to take charge of and dispose of same and appropriate the proceeds between the parties according to equity and good conscience.
The trial court erred in sustaining the demurrer to the bill of complaint, and its decree is reversed, and one is here rendered overruling same, and the cause is remanded.
Reversed, rendered, and remanded.
It cannot be questioned that the doctrine of Zimmerman v. Daffin, 149 Ala. 380, 42 So. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58, has long since become a rule of property. The statute abolishing the rule could not, as of course, affect property rights theretofore vested.
It follows then that the grantee of the timber or his successor is still the owner thereof.
By failure to remove the standing timber within the time granted, his property is occupying the lands of another. This, however, not by a trespass of the timber owner upon the land, but by virtue of a grant that still vests in him the ownership of the timber.
Having failed to remove it within the time stipulated, the privilege purchased and paid for, he should be required to compensate the owner for any further rights of way necessary to effect the use and enjoyment of his property.
Moreover, by nonremoval he has had the use of the soil to sustain and maybe contribute to the growth of his timber, a beneficial use of the land of another growing out of the status declared in the Daffin Case, supra. For this he should compensate the owner of the soil, and an equitable lien on the timber may be well recognized in favor of the owner for extended privilege of removal and the use of the soil after the time stipulated.
Inasmuch as no remedy at law is available to protect both parties in their rights, it seems to me to present a case for which courts of equity came into being. Such courts should have and do have, in my opinion, power to mold relief which will protect both.
Inasmuch as the owner of the land has granted and been paid for the timber, and it is still the property of the grantee, I cannot see the equity in allowing the grantor to destroy the property of another even in the use of his own.
Certainly it should not be permitted, in the absence of any necessity so to do, and in my judgment no such necessity should be forced on him by the refusal of the courts to remedy the situation.
I am of opinion either party should have a right to go into equity to effect a severance of the timber from the land, and a disposition of the proceeds as the equities shall appear. I see no good reason to wait until one party has invaded the rights of the other by making merchandise of his property, and then limit the relief to the proceeds of property thus wrongfully converted. To my mind the present ownership of the property with no right in any one to its use and enjoyment as a continuing status is the equivalent of the destruction of property rights.
"Every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law." (Italics supplied.) Constitution of Alabama, § 13.
Touching the suggestion of laches because of failure to remove during the long period stipulated in the timber deed and some five years thereafter, it must be said the grantee purchased and paid for the right to have the timber remain on the land for the full period. No legal remedy, it appears, has been open to the owner of the timber thereafter. An equitable remedy in my opinion exists and has existed alike in favor of both parties.
This is not intended to express approval of the Daffin Case as an original proposition, but to deal with the results of that rule in an equitable way.
I concur in the opinion holding the bill has equity, but think it too limited.
I am of opinion that the bill is without equity; that the demurrers thereto were properly sustained, and that the decree of the circuit court should be affirmed.
The bill is filed, not by the original grantee of Varner and wife-the Lathrop-Hatten Lumber Company-who under the grant of April 22, 1902, was given twenty-one years to remove the timber from the land, but by the grantee of said Lathrop-Hatten Lumber Company, to...
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