State ex rel. Cooper v. Goodrich

WOODSON, J. This suit involves but a single proposition of law, the facts being practically undisputed. The relators, under an assignment of a contract, made and entered into by and between one Allen and their ac'°ignors, claim the right to continue the possession of and to cut and remove standing timber from a certain tract of land situate in Osage county Missouri. The title to the lands, some three thousand acres, through mesne conveyances, became vested in the respondents, Cooper et al. Since, however, there is no question raised regarding the purchase without notice, etc., we will put those conveyances aside. After Cooper et al. became the owners of the land, they objected and prevented respondents from further entering, cutting and removing said timber from said lands which they had previously been doing without question. Thereupon the respondents instituted a suit in the circuit court of Jackson county, seeking to enjoin Cooper et al. from interfering with their rights of possession and right to cut and remove said timber. All of said parties were residents of Jackson county at the time of the institution of said injunction suit. After service was had upon the defendants, Cooper et al., in that case, in proper time and in due form, they challenged the jurisdiction of the circuit court of [724] Jackson county to try and determine the same, upon the ground that the title to real estate was involved, for the reason that growing timber is a part of the land upon .which it is grown, etc., and consequently such a suit under óur statutes .must be brought in the county where the land is situate. Upon an adverse ruling made by the court to the defendants, Cooper et al., they applied to this court for a writ of prohibition, seeking to prohibit the respondents from further proceeding with the trial of said cause in the circuit court of Jackson county. As previously stated the only question presented, by this record for determination is, has the circuit court of Jackson county jurisdiction to try an injunction suit brought therein, by the plaintiffs, seeking to prevent the defendants therein, from interfering with the rights of the former, that is, to continue to cut and remove standing timber from lands situate in Osage county? The respondents affirm said jurisdiction, .while relators deny it. If we correctly grasp the full meaning of relators ’ contention, it is this: That in order to decide this case in favor of the respondents, this court must hold: First, that relators are entitled to the possession of the land mentioned, for thé purpose of cutting and removing the timber therefrom; and, second, that growing timber is not a part of the land upon which it is growing, and consequently is not real estate within the meaning of section 753, Revised Statutes 1909, which reads: “Suits for possession of real estate, or whereby the title thereto may be affected shall be brought in the county within which such real estate, or some part thereof, is situate.” There can be no question at this late day, but that growing crops and growing timber, as between grantor and grantee, are parts of the land upon which they are growing. The text-writers and the adjudications of the courts upon that question are uniform in so [725] holding. This court has so held in a number of cases. In fact that doctrine is elementary. [Mcllvaine v. Harris, 20 Mo. 458; Pratte v. Coffman's Exr., 27 Mo. 424; 4 Kent’s Comm., 518, 519; 1 Greenleaf, Ev., 352; Willard, Real Prop., 32; Kittridge v. Woods, 3 N. H. 503; Bank v. Wise, 3 Watts, 394; Foote v. Colvin, 3 Johnson, 216.] That proposition of law is not questioned by counsel for the relators, but they insist that the title to the real estate mentioned is not questioned, but concede it to be in the defendants in the injunction suit, and that the determination of this or that case in favor •of the relators will in no degree affect the title of the respondents to the land upon which the timber is standing, nor can the injunction suit be held to be a suit for the possession mentioned, for the simple reason that they had that possession at the time of the institution of the injunction suit, and still have it. This question was presented to this court in the case of Turner v. Morris, 222 Mo. 21. There the question presented involved growing wheat (which as we have seen is the same as growing timber), the value of which was below the jurisdiction of this court, and the respondent there moved to have the cause certified to the court of appeals, for the reason that the title to real estate was not involved. While it is true that case did not involve the construction of the section of the statute before quoted, nevertheless, the question here presented is identical with the one .there determined. In discussing that question the court, on pages 22 and 23 said: “Counsel for respondent insists that this court had no jurisdiction to entertain or determine this appeal, for the reason that the amount involved is under $4,500, and that title to real estate is not involved within the meaning of section 12 of article 6 of the Constitution, which gives this court appellate jurisdiction of cases involving title to real estate. [726] “In onr opinion that insistence is well taken, for the reason that we have repeatedly held that before an appeal can be entertained by this court on the’ground that title to real property is involved within the meaning of that section of the Constitution, the record must show that the title to the real estate mentioned in the pleadings will be directly affected by the judgment or decree to be rendered in the cause. And, although the title thereto may be incidentally, collaterally or unnecessarily inquired into at the trial, for the purpose of determining the issues involved, yet, if the judgment or decree rendered by the trial court does not directly affect the title to the real estate, and can be satisfied by the payment of money, then the appeal should go to the Court of Appeals. [Price v. Blankenship, 144 Mo. 203; Balz v. Nelson, 171 Mo. l. c. 688; Christopher v. Home Saving Assn., 180 Mo. 568.] “Uhder no possible circumstances could the judgment rendered by the circuit court in this case affect the title to the real estate purchased by appellant from respondent; and the same may be satisfied by paying $82.50, the amount of the judgment, with interest and costs. • “We are, therefore, of the opinion that this court has no jurisdiction over this appeal, except to certify it to the St. Louis Court of Appeals, which is accordingly done.” That ruling is controlling here. We therefore, deny the peremptory writ prayed for, and quash the preliminary rule heretofore issued. All concur.