Jefferson Davis County v. Simrall Lumber Co.

Smith, J., delivered the opinion of the court. “Jefferson Davis County, plaintiff, by its board of supervisors,” instituted suit in the court below to recover from appellee damages for waste alleged to have been committed by appellee in cutting timber from sixteenth section land. Judgment was rendered in favor or the defendant,-and plaintiff appeals to this court. The right of the county, or its board of supervisors, to institute a suit of this character, is challenged on the ground that an action for waste can only be brought by the owner of the fee, the party having 'the right to the reversion; that such title and reversion of sixteenth section land is in the state; that the state has never authorized counties, or the boards of supervisors thereof, to institute such suits; and, if it has, to do so was beyond the power of the state. The title to sixteenth section land is in the state; but it holds same in trust for the support of the public schools of the township wherein the same is situated. Chapter 129 of the Code of 1906, and particularly section 4701 thereof, confers upon the several counties, through their respective boards of supervisors, under the general supervision of the land commissioner, jurisdiction and control of sixteenth section land, to be exercised, of course, within the terms of the original trust, and imposes upon them the duty of collecting all funds arising from such lands. This grant of jurisdiction and control, coupled with the duty to collect funds, necessarily carries with it all powers necessary to carry out the purpose of the grant, one of which necessarily is the power to institute suit for collection — 536 — of such funds. To do this was clearly within the power of the state. This, in fact, was not a delegation of power within the rule of “delegatus non potest delegare.” A county is a political subdivision of the state, created for the purpose of acting for the state in local matters, whose powers are exercised by a board of supervisors. The state, in thus dealing with sixteenth section land, acts through one of its own, and most appropriate, governmental agencies. For such purposes, and within the power conferred upon it, the county is the state. Coming, now, to the ease on its merits, the facts are that on the 16th day of January, A. D. 1906, appellee purchased from the lessee of the land in question the timber thereon by means of the following contract: “In consideration of $1.00 in hand paid and the further sum of $16.50 per acre, tobe paid as hereinafter mentioned, I hereby grant, bargain, sell, convey, and warrant unto James-Sumrall Lumber Company all of the timber being, lying, standing, and being on the following described land: E. % of N. E. % and S. E. % section 16, T. I, E. 19 west, Lawrence (now in Jefferson Davis) county, Mississippi. It is here understood that said timber shall be paid for in the following manner: On commencing on the said timber after this date, the said James-Sumrall Lumber Company agrees to pay for eighty acres at the said rate of $16.00 per acre; then thereafter, until all of said timber has been cut, the said James-Sumrall Lumber Company agrees to keep forty acres paid for in advance of the forty they may then be cutting on, together with the right at all times from the date thereof of ingress and egress upon said lands to cut down and remove said timber therefrom; and also I grant to said company, their successors and assigns, for the consideration aforesaid, a right of way over, through, and across said property, or any part thereof, to construct, maintain, and use logging railways, or tram roads, or dirt roads, with the right to construct, maintain, and use spur tracks or roads over through, and across said land continuously for the purpose of removing the timber now owned — 537 — or to be acquired by said company from said and all lands adjacent to the above-described land.” Appellee, after the execution of this contract, commenced to cut and remove the timber from said land, so that on November 27, 1907, the date of the filing of this suit, practically all of the merchantable timber had been removed from about two hundred .acres thereof. This timber was cut by appellee on its part for purely commercial purposes, and the reason that it did not remove same from the remainder of the land was that it “did not know what would be the outcome of it.” The lessee, or her husband, who acted for her, claimed that he made this contract with appellee for the purpose of having the land cleared for cultivation, and that it was his intention “to clean up” the remainder thereof; that about eighty acres of it were put in cultivation in 1907, and at the time of the trial about two hundred and fifteen acres of it had been put in cultivation; and that a part.of the lumber manufactured by appellee from the timber obtained from this land had been purchased by him to use in building fences and houses thereon. At the close of the evidence the court instructed the jury to find for the defendant, and there was a verdict and judgment accordingly. In Warren County v. Gans, 80 Miss. 76, 31 South. 539, and Lumber Co. v. Harrison County, 89 Miss. 526, 42 South. 290, 873, it is held that a tenant of sixteenth section lands “may clear up for cultivation such portions of it as a prudent owner in fee would clear for that purpose, provided he leaves enough timber and wood as may be necessary for the permanent use and enjoyment of the inheritance.” He must do this, however, in good faith. Such good faith is a question for the jury, which being established, it is for the jury also to say to what extent he may cut timber before he is guilty of waste, in both instances under the direction of the court as in other cases. 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 á particular case — 538 — shall show the fact to be that 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. The giving of the peremptory instruction, therefore, was error. Reversed and remanded.