Wisconsin & Arkansas Lumber Company v. Fitzhugh

• Decision Date: 12 December 1921
• Docket Number: 37
• Citation: Wisconsin & Arkansas Lumber Company v. Fitzhugh, 151 Ark. 81, 235 S.W. 1001 (Ark. 1921)
• Parties: WISCONSIN & ARKANSAS LUMBER COMPANY v. FITZHUGH
• Court: Arkansas Supreme Court

235 S.W. 1001

151 Ark. 81

WISCONSIN & ARKANSAS LUMBER COMPANY v. FITZHUGH

No. 37

Supreme Court of Arkansas

December 12, 1921

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Henry Berger and Mehaffy, Donham & Mehaffy, for appellant.

The description "ten board trees" in the deed was not sufficient to designate the trees reserved. 30 Ark. 640; 30 Ark. 657; 35 Ark. 470; 48 Ark. 419; 95 Ark. 253; 106 Ark. 83; 119 Ark. 301; 139 Ark. 83; 144 Ark. 442.

H B. Means and D. D. Glover, for appellee.

There was nor error in admitting oral testimony to prove the terms of the deed. 140 Ark. 231.

The contract, having been prepared by defendant, must be construed as unfavorably against them as its terms will admit. 90 Ark. 92.

OPINION

WOOD, J.

This is an action by the appellee against the appellant. The appellee alleges that he is the owner of the N half of the SW quarter of section 4, township 6 S., R. 15 W, and also the NW quarter of the SE quarter of section 5, township 6 S., R. 15 W, and other lands; that he sold to the appellant the pine timber on the above described tracts of land with the exception of ten board trees reserved in the face of the timber deed for his own personal use; that after he sold the timber to appellant it entered upon the lands and not only cut the timber purchased from the appellee, but also knowingly cut and removed nine of the ten trees reserved by the appellee when the deed was executed; that these nine trees were worth the sum of $ 225, for which he prays judgment. The appellant denied that it cut any board trees of the appellee.

The appellee testified that he was the owner of the land described in his complaint. He exhibited the timber deed executed by him to the appellant. The part material to this issue and which was introduced in evidence reads as follows "This indenture made this fifteenth day of November, 1906, by and between S. E. B. Fitzhugh, party of the first part, and the Wisconsin & Arkansas Lumber Company, party of the second part, witnesseth: The said party of the first part, being the owner in fee, and in peaceable and lawful possession of the following lands in Grant County, Arkansas, to-wit: North half of the southwest quarter, and the southwest quarter of the northwest quarter of section four (4), and also the pine timber on the northeast quarter of the southeast quarter east of the field of section five (5), all in township six (6) south, range fifteen (15) west, excepting ten (10) board trees." The deed then specifies that for the consideration of $ 1,000 the appellee conveys to the appellant all the timber standing, fallen, and growing on the above-described lands, the timber to be cut and removed from the lands within a period of ten years, etc. The appellee further testified that the appellant prepared the deed which he executed, and when the time specified in that deed expired he executed another deed which appellant also prepared and which was substantially a copy of the former deed except that the last deed granted to the appellant the right to remove the timber from the lands for a period of two and a-half years upon the consideration of $ 200 paid by the appellant to the appellee. After the deed extending the time was executed, appellant cut and removed nine of the trees that had been reserved by the appellee. These trees would have averaged over 2500 feet of lumber to the tree and were worth in the neighborhood of $ 75 per tree.

Other witnesses corroborated the testimony of the appellee to the effect that the nine board trees reserved in the timber deed were cut by the agents of appellant.

D. D. Clark testified on behalf of the appellant that he and one Lee cut the timber on the lands described in the deed for the appellant; that the timber belonged to the appellant except the trees in controversy. The Appellant gave witness and Lee a plat of the land and told them what timber to cut. They worked by that plat. The board trees were reserved on the SW quarter of the NW quarter of sec. 4, and the NW quarter of the SW quarter of sec. 4. There were two trees reserved in sec. 5. They were left there and not cut at all. As witness understood it, Fitzhugh was to reserve his timber on his own place, and, instead of doing that, he just marked two trees on his own place and on the other three forties in a section he had no right to reserve them he went over there and marked his trees. Witness supposed he had them reserved as board trees. He knew it at the time--knew appellee was to cross nine or ten trees--and at the time witness cut the same these trees had the cross on them, and witness knew they were reserved by Fitzhugh. Witness would not have cut these trees if he had not been instructed to do so by the Wisconsin & Arkansas Lumber Company.

There was other testimony on behalf of the appellant to the same effect, and also testimony tending to show that the value of the timber in these reserved trees would run from $ 4 to $ 5 per thousand feet.

The appellant asked the court to instruct the jury to return a verdict in its favor and also to instruct the jury that the appellee could recover nothing for the eight board trees on the land in ...