Franks v. Davis Bros. Lumber

DAWKINS, J. On February 16, 1916, Dr. J. Franks, alleging himself to be the owner of the S. y2 of N. W. yé and N. E. % of N. W. % of section 17, township 16 north, range 4 west, together with the timber thereon, obtained from the court below a writ of injunction restraining Davis Bros. Lumber Company, - Limited, from cutting and removing the timber from said lands. He prayed that the writ he sustained, and that he recover the sum of $300 as the value of timber already removed. This writ was issued on the order of the clerk, in the absence of the judge. February 19, 1916, the defendant in the case just mentioned filed another suit, in which it claimed the ownership of the timber on the said described lands, and obtained from the judge a writ of injunction, prohibiting the said Dr. J. Franks from interfering with it in the cutting and removal of said timber. It alleged the value of the timber as $1,000, and that the rights of way through, over, and across said lands for the purpose of removing other timber which it owned in that vicinity were well worth the sum of $2,000. It asked that the injunction be perpetuated, and that it recover the sum of $200 as damages for attorney’s fees. Certain preliminary pleas and exceptions were filed and considered by the lower court, but have not been pressed here, and, besides, we do not think they have sufficient merit to warrant our discussing them. We.think the disposition made thereof by the lower court was proper. In answer to the first suit the defendant therein, Davis Bros. Lumber Company, Limited, claimed the ownership of the timber, which it admitted it was cutting, under a deed from Franks giving an original • period of ten years in which to cut and remove the same, with an additional indefinite term upon, payment of the taxes on the land. The petition to which this answer was filed did not mention or attack the said timber deed in any way. For answer to the second suit the defendant Franks admitted having signed., the timber deed' to • Davis Bros. Lumber Company, Limited, but averred that the period for removal stipulated therein was two years from November 1, 1905, and that this time had long since expired. Franks also made part’of his answer copy of a petition filed by him in July, 1907, attacking the said timber deed on the ground that the time for removal agreed on was two instead of ten years, and in which he had prayed that the said deed be annulled, and in the alternative .that it be held to grant two years from November 1, 1905, for the removal of the timber. With the issues thus made up, the cases were consolidated, went to trial, and the lower court rendered judgment, first in favor of Davis Bros. Lumber Company, sustaining the timber deed as written, but on a second hearing reversed its former decree, and gave judgment in favor of Franks, decreeing him to be the owner of the timber, susfaining his injunction, and dismissing his demands for the timber which had already been cut. Defendant appealed, and plaintiff has appeared and moved to dismiss the appeal on [807] tlie ground of want of jurisdiction ratione materise. On tlie Motion to Dismiss. [1] It is true that the value placed upon the timber by the appellant in its pleadings, $1,000, and the damages claimed, $200, do not amount to enough to give this court jurisdiction on appeal; but we must also consider the allegations with reference to the rights of way for reaching timber on other lands, as Seriously made, for it appears to us that they might, under proper conditions, easily possess that value. These rights being inseparably tied up with the question of whether or not Davis Bros. Lumber Company, Lim-itéd, still had the right to cut and remove the timber on the lands in dispute at the time of the filing of this suit, we think the value of the property and rights involved are sufficient to give this court jurisdiction.