Opinion
No. 28146.
December 2, 1929. Suggestion of Error Overruled March 10, 1930.
1. PUBLIC LANDS. Whether lessee's cutting timber on sixteenth section land was to put land into cultivation was question of fact for trial court.
Where lessee of sixteenth section of land cut timber therefrom and sold it for commercial purposes, whether or not cutting of timber was in good faith and preparatory to putting land into cultivation, as he claimed, was question of fact for trial court.
2. PUBLIC LANDS. Liability of lessee of sixteenth section for cutting timber is that only which arises under general law of waste ( Hemingway's Code 1927, section 3440 et seq.).
Liability of lessee holding under ninety-nine-year lease of sixteenth section of land for cutting timber growing on leased premises is that only which arises under general law of waste, and county is not entitled to penalty prescribed by Code 1906, section 4976 et seq. (Hemingway's Code 1927, section 3440 et seq.), for cutting of timber by person on land other than his own without consent of owner.
APPEAL from chancery court of Coahoma county, Second district. HON. R.E. JACKSON, Chancellor.
Jas. R. McDowell, of Memphis, Tenn., for appellant.
The great criterion by which to determine whether waste has been committed is whether or not the estate is injured. It is clear that cutting timber and clearing land, instead of being waste, would often greatly enhance the value of the inheritance.
27 R.C.L., page 1028; Owen v. Hyde, 6 Yerg. (Tenn.), 334; 27 Am. Dec. 467; Rutherford v. Wilson, 95 Ark. 246; 37 L.R.A. (N.S.) 763-772; 30 Am. Eng. Enc. Law (2 Ed.), 245; 27 R.C.L., page 1014; Rutherford v. Wilson (Ark.), 37 L.R.A. (N.S.) 763; McCloud v. Dial, 63 Ark. 10.
Subject to the limitations affecting the right to clear the land, the life tenant is entitled to the timber, or to the proceeds thereof, which he, in good faith, cuts for purpose of clearing the land and fitting it for cultivation.
Gans case, 80 Miss. 76.
If the jury should find that the trees were cut down for the purpose of sale, the tenant was guilty of waste, but if they were cut with a view of clearing the land, she was not guilty of waste.
Ward v. Sheppard (N.C.), 2 Am. Dec. 625; Lunn v. Oslin, 96 Tenn. 28; King v. Miller, 99 N.C. 583; Davis v. Gilliam, 40 N.C. 308; Crockett v. Crockett, 2 Ohio St. 180.
What constitutes waste by a tenant for a term of years is determined by a consideration as to whether or not the act done results in injury to the inheritance.
Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, Syl. 10; Davis v. Gilliam, 40 N.C. 310; Warren County v. Gans, 80 Miss. 81; Street v. Columbus, 75 Miss. 777; Fernwood Lbr. Co. v. Rowley, 110 Miss. 821; Lewis v. Myer, 77 So. 297; Learned v. Ogden, 80 Miss. 769; Cannon v. Barry, 59 Miss. 289.
The rule is well settled in the United States that where timber has rightfully been cut for the purpose of clearing land for cultivation, the cutting does not become waste simply because the timber so cut is sold, used or consumed off the premises.
30 Am. Eng. Ency. Law (2 Ed.), 245.
Where an unintentional rather than a wilful act is held to be waste in the removal of timber, the measure of the damage is the value of the timber on the premises at the time it was cut.
28 Am. Eng. Ency. Law (2 Ed.), page 545; Van Dusen v. Young, 29 N.Y. 9.
The statutory penalty is recoverable only in cases of wilful trespass, or of inexcusable neglect.
McCleary v. Anthony, 54 Miss. 708, 711.
If the act was in good faith, upon some supposed right of claim, or error, the measure will be the value of the property at the time it was taken.
Heard v. James, 49 Miss. 236.
Roberson Cook, of Clarksdale, for appellee.
No lessee has any right as such to cut timber for commercial purposes from the leased lands.
There can be no question as to the county's right to maintain this suit.
Warren County v. Gans, 80 Miss. 76; Moss Point Lbr. Co. v. Harrison Co., 89 Miss. 448; Jeff Davis County v. Sumrall Lbr. Co., 49 So. 611; Jefferson Davis County v. Long, 49 So. 613.
Whether or not an act on the part of the tenant constitutes waste is determined by the facts and conditions which exist at the time the act is committed, and wherever the evidence in a particular case shall show the fact to be that the timber was cut and sold from a sixteenth section leasehold really and actually for commercial purposes, no subsequent subterfuge or pretense, under cover of which it shall be claimed that it was cut and sold for agricultural purposes, will be tolerated by the courts.
Warren County v. Gans, 80 Miss. 76, 31 So. 539.
It is not necessary that the injury to the inheritance by the cutting of the timber be substantial.
Coston v. Pine Lbr. Co., 110 Miss. 165.
If the property has been altered or increased in value, it would depend, as to the amount of recovery on the character of the conversion; if that were wilful the value of the article so increased would be the rule. But if the acts were bona fide, the rule would be to allow the defendant for whatever value his labor had actually conferred upon the property.
Sedgwick on Measure of Damages, page 578; Bond v. Griffin, 74 Miss. 799; Lesser v. Dame, 77 Miss. 798; Taylor v. White, 61 Miss. 24; E.E. Bolles Wooden Ware Co. v. United States, 106 U.S. 432; Guarantee Trust Safe Deposit Co. v. E.C. Drew et al., 31 So. 736; Leavenworth v. Hunter, 116 So. 593.
The penalty of fifteen dollars per tree should have been inflicted.
Mhoon v. Greenfield, 52 Miss. 434; Perkins v. Hackleman, 26 Miss. 41; Keim v. Warfield, 60 Miss. 799; Leavenworth v. Hunter, 116 So. 593; Planters Package Company v. Parsons, 120 So. 200.
Argued orally by J.R. McDowell, for appellant, and by Lake Roberson, for appellee.
The appellant is the lessee of sixteenth section land, and was sued by the appellee for the cutting of timber thereon for commercial purposes. The case was tried on bill, answer, and proof, and a decree was rendered charging the appellant with the value of the timber as it stood on the land prior to being cut. The appellant brought the case to this court, and the appellee cross-appeals. The appellant admits having cut timber suitable for commercial purposes from the land, and to have sold it, but claims that he intended to clear the land and put it into cultivation and that the cutting of this timber was preparatory thereto. When the lessee of sixteenth section land cuts timber therefrom and sells it for commercial purposes, whether or not the cutting of the timber was in good faith and preparatory to putting the land into cultivation is a question of fact for the trial court and the evidence here in support of the appellant's claim of good faith is weaker than that relied on by the lessee in the case of Jefferson Davis County v. James Simrall Lumber Co., 94 Miss. 530, 49 So. 611; consequently the decree of the court below on direct appeal must be affirmed.
The cross-appeal complains of the measure of damages adopted by the court below. The appellant, after cutting the timber, hauled it to a sawmill, at which place the timber was worth more than it was when standing on the land. Appellee's claim in this connection is (1) that the court below, in adjudging the appellant liable for the timber, necessarily found that it cut the timber willfully for an unauthorized purpose, and therefore the appellee is entitled to any value added thereto by the appellant in dealing therewith; and (2) that it is entitled to the penalty prescribed by sections 4976 et seq., Code 1906 (sections 3440 et seq., Hemingway's Code 1927), for the cutting of timber by a person on land other than his own without the consent of the owner.
The lease under which the appellant holds the land was executed on March 1, 1847, for ninety-nine years; he is entitled thereunder to the sole possession of the land and to a qualified right in the timber growing thereon, having a right to cut it for certain purposes, the line of demarcation between which purpose and a purpose unauthorized being sometimes a close and delicate question for decision. While the question is not without difficulty, we are of the opinion that the liability of such a lessee for the cutting of timber growing on the leased premises is that only which arises under the general law of waste, and that the measure of damages adopted by the court below was correct.
Affirmed.