Fermwood Lumber Co. v. Rowley

Smith, C. J., delivered the opinion of the court. In March, 1900, Cyrus Lewis, being the lessee of the northeast quarter of the northeast quarter of a sixteenth section situated in Marion county, the unexpired term of his lease being about fifty-five years, sold and warranted to appellant the timber growing thereon by deed duly acknowledged and recorded. In October, 1910, Lewis, by •deed, conveyed to appellee Rowley all his interest in the lease. In January, 1912, Rowley purchased from the board of supervisors of Marion county all of the timber growing on this land, and afterwards sold it to appellees Bourn and Williamson, who, over the protest of appellant, proceeded to cut and remove it, whereupon appellant ■filed its bill in the court below against them, and also ■against Rowely, praying that they be enjoined from cutting the timber, and that an account be taken of that cut ■and removed, and that he be awarded damages therefor. No injunction was issued, and the case proceeded to trial solely upon appellant’s claim for damages. On final bearing, the bill was dismissed on the ground, as recited in the decree, that appellant had no interest in the timber. As we understand this record, the only question presented to us for decision is: Did appellant have an interest in the timber; and, if so, what was the- character thereof, and the measure of damages sustained by him because of "its removal? The conveyance of the timber by Lewis to appellant was valid, and vested in appellant the right to ■.appropriate it whenever it could be lawfully cut and re [825] moved from the land. Caston v. Lumber Co., 69 So. 668. And since appellee Rowley had notice of this conveyance-when he purchased the land, he obtained by this purchase-no title or right to the timber. The only control which the board of. supervisors had over the timber was to prevent its being cut or destroyed,, except in accordance with the rules of good husbandry,, unless the right so to do should be purchased from it, and this right it could sell only to, or with the consent of, the-lessee of the land (Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1), or to or with the consent of the person to-whom the lessee had sold the timber, and his assignees. In the case at bar the only person to whom this right could have been lawfully sold was appellant, so that Rowley and. his assignees, Bourn and Williamson, acquired no right to appropriate the timber by virtue of Rowley’s contract, with the board. The board of supervisors had no authority either to Cut and remove the timber, or to authorize appellees so to do. The only right which it did have in this connection, and consequently the only right which. Rowley and his assignees acquired by virtue of Rowley’s contract with the board; was simply the right to sell to-appellant, or its assignees, the right to cut and remove-the timber for uses not within the rules of good husbandry. The interest of appellant in the timber being as herein before outlined, and appellees having neither title thereto-nor right of possession thereof, the case, as to the measure of damages, falls within the rules laid down in 38' Cyc. 2089, par 4. Prom which.it necessarily follows that the measure of appellant’s damages is the value of the-timber cut and removed. Reversed and remanded..