This is the third appeal of this case. See Smith v. Jasper County Lumber Co., Tex. Civ. App. 46 S.W.2d 430; Id., 124 Tex. 156, 76 S.W.2d 505; Jasper County Lumber Company v. Smith, Tex. Civ. App. 91 S.W.2d 834.
The suit involves title to merchantable timber on 408 acres of land in Jasper county. Appellees, to whom we will refer as the Smiths, owned the land. In 1922 they executed a timber deed, conveying the timber on it to A. J. Peavy, trustee. The deed gave the grantee, his successors and assigns, 15 years from the date of the deed in which to cut and remove the timber. The deed further provided:
"2. It is further understood and agreed that after the entry upon said land and the cutting and removal of said timber therefrom by the grantee, his successors or assigns, all of the right, title and interest whatsoever of grantee, his successors or assigns, shall revert to grantors, their heirs or assigns, except the right-of-way privileges herein conveyed.
"3. It is further understood and agreed that when said grantee, his successors or assigns shall have cut over and abandoned said land one time, the timber then remaining thereon shall revert to grantors, their heirs and assigns."
The title to the timber conveyed by said deed passed to the Jasper County Lumber Company, to which we will hereafter refer as the Lumber Company. At various times up to about the first part of the year 1930 the Lumber Company entered upon and cut timber from the land. The testimony of expert timber men, who based their estimates on measurements made on the ground, shows that the Lumber Company cut a total of 555,925 feet and that 2,541,573 feet of merchantable timber is still standing on the land. The evidence shows that the cutting was limited to pine, white oak, and ash. Of the pine, 64,093 *Page 1192 feet were cut and 272,483 feet are still standing; of the white oak, 248,398 feet were cut and 341,761 are standing; of the ash, 236,643 feet were cut and 179,035 feet are standing. There are 407,055 feet of red oak standing, none cut, and 843,914 of red gum standing and none cut. Other varieties of timber in small quantities remain, none of which has been cut. The proof shows that the cutting was general over the land. On the whole tract of 408 acres there are approximately 50 or 60 acres made up of several small tracts here and there on which no timber has been cut.
The evidence was reviewed at length in the opinion of Justice O'Quinn on the first appeal. 46 S.W.2d 430. In every material respect the testimony is the same. On this trial as on the first, the Lumber Company offered evidence that it had no intention of abandoning the timber and that it has continued to render and pay taxes on it. We here make reference to the opinion of Justice O'Quinn, cited supra, for a more complete statement of the facts.
In the early part of 1930 the Smiths entered upon the land and began cutting the timber, asserting title thereto on the ground that the Lumber Company had cut over and abandoned the timber and that title to the remaining timber had reverted to them under the provisions of the deed above quoted. The Lumber Company instituted this suit, asserting its title, and by cross-action the Smiths pleaded their title based on the theory of abandonment.
Reference to the former opinions will show that upon the first trial the trial court instructed a verdict for the Lumber Company on the ground that no issue of abandonment was raised by the evidence. That judgment was affirmed by this court. A writ of error was granted by the Supreme Court and the judgments of this and the trial court reversed and the cause remanded, the Commission of Appeals holding, among other things, that the evidence raised an issue of abandonment. 124 Tex. 156,76 S.W.2d 505. The second trial resulted in a jury finding in favor of the Smiths on the issue of abandonment. This court reversed the judgment because of procedural errors. 91 S.W.2d 834. On the present trial the trial court submitted the case to the jury on the following three issues, to which the jury returned the answers indicated:
(1) "Do you find from a preponderance of the evidence that Jasper Lumber Company has cut-over and abandoned the land described in the pleadings in this one time ?" To which the jury answered "Yes."
(2) "Do you find from a preponderance of the evidence that plaintiff, and its predecessors in title, Jasper County Lumber Company, has claimed the timber in controversy at all times since the year 1923?" To which the jury answered "No."
(3) "Do you find from a preponderance of the evidence that it has been the intention of plaintiff, and its predecessor in title, Jasper County Lumber Company, at all times since 1923, to cut and remove the timber in controversy prior to the 31st day of October, 1937?" To which the jury answered "No."
The Lumber Company's motion for instructed verdict and for judgment non obstante veredicto was overruled and judgment entered in favor of the Smiths. This appeal is from that judgment.
Opinion. Counsel for appellant have filed a lengthy and interesting brief, presenting many assignments and propositions. But with the exception of complaints as to the court's charge, which we will notice later, it all sums up to the contention that the evidence did not raise an issue of abandonment against it and was wholly insufficient to sustain the jury's findings on that issue.
Such contentions must be overruled. On the first appeal this court agreed with appellant's contention and held that the issue of abandonment was not raised. In so holding this court committed error. On the very facts now before us Mr. Justice Ryan, speaking for the Commission of Appeals, opinion adopted by the Supreme Court, held, in reversing our judgment:
"There was sufficient evidence (quoted by the Court of Civil Appeals and unnecessary to repeat here) to take the question of abandonment to the jury, although it be conceded that the various cuttings of timber by grantee were not of all the kinds of timber on certain portions of land, and that under the contract it was not required that all the timber should be cut at one continuous cutting nor that when one kind of timber was cut all the other kinds must be cut at the same time. * * *
"The extent of the cutting within the contract period was optional with the *Page 1193 grantee, but, when he abandoned the land whether all or only a portion of the timber had been cut, the clause in question applied. The question of abandonment is one of fact based on competent evidence, to be submitted to the jury. 1 Tex.Jur. p. 13.
"The question presented in the trial court was whether the land had been cut over and abandoned, and this issue should, as stated above, have been submitted to the jury." Smith v. Jasper County Lumber Co.,124 Tex. 156, 76 S.W.2d 505, 508.
As remarked above, the evidence is the same on this appeal as on the former with the immaterial exception that the amount of timber cut was shown on the first trial by approximate estimates, and on the present trial the witnesses testified from actual measurements. These measurements in no wise change the former testimony but instead show its approximate accuracy. The holding of our Supreme Court on the facts is the law of this case.
Appellant complains of the court's charge where it defines "cut-over" as meaning "the cutting of the timber generally over the land, without regard to the amount or character of the timber cut," on the ground that no issue was raised that the land had been cut over, and, further, the definition was a general charge. We think the charge was not subject to objection. The evidence with reference to the extent of the cutting was without conflict. The land had been "cutover" generally. The definition given was in accordance with the opinion of the Commission of Appeals and with the direction of this court. See opinion of Chief Justice Walker,91 S.W.2d 834, 835, 836.
We do not think that issue No. 1, set out above, was duplicitous in inquiring whether the land had been "cut-over and abandoned." It submitted the one and only issue in the case. And with the appropriate definitions which the trial court gave of "cutover" and "abandoned" presented the issue clearly and simply.
There are numerous exceptions to the charge of a similar kind, and to review each would unnecessarily prolong this opinion. We have carefully considered all of them and concluded that the trial court committed no reversible error. The judgment is affirmed.
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