Summary
In Hood v. Foster, 194 Miss. 812, 13 So.2d 652 (1943), it was held that land is per se property of peculiar value, and will be protected by injunction without reference to its quality, use, or value. It is undoubtedly true that the cost of restoring the Shattles property and the drainage to the condition existing prior to September 15, 1970, will be disproportionate to the amount of damages suffered by Shattles. Nevertheless, we hold that the law cannot be satisfied by anything less than the restoration of the Shattles property by mandatory injunction.
Summary of this case from Shattles v. Field, Brackett Pitts, Inc.Opinion
No. 35379.
May 24, 1943.
1. LANDLORD AND TENANT.
An agricultural lessee has right to "estovers," which is right to use, during lease, whatever timber there may be on leased premises necessary to promote good husbandry.
2. LANDLORD AND TENANT.
An agricultural lessee's right to "estovers" includes when necessary to promote good husbandry, right to use timber for fencing, bridges, corn cribs, cotton houses, fire wood, and repairs.
3. PUBLIC LANDS.
Where sixteenth section land was subject to 99-year agricultural lease, timber could not be sold without lessee's consent (Code 1930, secs. 6759, 6761-6763).
4. ESTOPPEL.
Where timber on sixteenth section land was sold without consent of agricultural lessee, lessee was not "estopped" from maintaining suit to enjoin removal of timber because lessee had bid for timber at sale thereof (Code 1930, secs. 6759, 6761-6763).
5. PUBLIC LANDS.
Where timber on sixteenth section land was sold without agricultural lessee's consent, lessee had no complete and "adequate remedy at law," and could maintain suit to enjoin removal of timber, since such removal would be an "irreparable injury" (Code 1930, secs. 6759, 6761-6763).
6. INJUNCTION.
The special features of an "irreparable injury" are that injury is act which was serious change of, or destructive to, property it affects either physically or in character in which it has been held and enjoyed, and that property has some peculiar quality or use such that its pecuniary value, as estimated by jury, will not fairly recompense owner for its loss.
7. INJUNCTION.
Land is per se property of peculiar value and will be protected by injunction without reference to its quality, use or value.
8. INJUNCTION.
If trespass is continuous and repeated acts of trespass are done or threatened, although each of such acts may not be destructive or inflict irreparable injury and legal remedy may therefore be adequate for each single act, the entire wrong may be enjoined.
APPEAL from chancery court of Copiah county, HON. V.J. STRICKER, Chancellor.
Henley, Jones Woodliff and Carroll Kemp, all of Hazlehurst, for appellant.
We submit that the issues here involved are substantially as follows: (1) Can the board of supervisors of a county sell merchantable timber on the sixteenth section school land without the consent of the lessor of an agricultural lease? (2) Is the lessor of an agricultural lease entitled to injunctive relief against a solvent defendant proposing to cut only merchantable timber and not to interfere with the rights of the agricultural lessee, or is such relief confined to recovery of any damages that may be done to the lessee's rights?
The determination of the issues here involved depends upon whether the court shall now follow the reasoning in the case of Dantzler Lumber Company v. State, 97 Miss. 355, 53 So. 1, or shall follow the reasoning in the case of Pace v. State, 191 Miss. 780, 4 So.2d 270. If the Dantzler Lumber Company case and the decisions following this case be followed then the public authorities have no control whatsoever over merchantable timber growing on sixteenth section school lands except to prevent any waste on the part of the agricultural lessees. If, on the other hand, the same rule be applied to timber as was applied to minerals in the Pace case, supra, then the interest of the public in the timber growing on such land can be preserved and at the same time the agricultural lessee will be protected with respect to any damages done to his rights. This appeal is prosecuted with the view of suggesting that the time has arrived when the court should reexamine the decisions upon this subject and more clearly define the rights of the public in respect thereto.
Collation of statutes involved: Mississippi Code of 1930, Secs. 6759, 6760, 6761, 6762, 6763, 6783.
The history of the decisions upon this subject demonstrates that the rule with respect to the issues here involved has been unsettled and unsatisfactory.
Caston v. Pine Lumber Co., 110 Miss. 165, 69 So. 668; Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; J.T. Fargason Son, Inc., v. Coahoma County, 156 Miss. 419, 124 So. 758; Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3; Gulf Refining Co. v. Terry, 163 Miss. 869, 142 So. 457, 462; Jefferson Davis County v. Simrall Lumber Co., 94 Miss. 530, 49 So. 611; Lewis v. Myer, 116 Miss. 454, 77 So. 297; Moss Point Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss. 448, 42 So. 290, 42 So. 873; Pace v. State, supra; Code of 1906, Sec. 4702; Acts of 1910, Ch. 220.
Economic conditions show the unsoundness of permitting an agricultural lessee to control the disposition of valuable timber, the title to which is left in "trust to the public for the benefit of the school children of the state."
Dantzler Lumber Co. v. State, supra; Lewis v. Mayer, supra.
The rule announced in Pace v. State, 191 Miss. 780, 4 So.2d 270, decided October 30, 1941, should be applied to timber as well as minerals.
Code of 1930, Sec. 6761; Code of 1930, Sec. 6763 (Ch. 318, Laws of 1926).
Appellee's remedy at law is adequate and he is not entitled to injunctive relief.
Learned v. Ogden, 80 Miss. 769, 32 So. 278, 92 Am. St. Rep. 621; Nevitt v. Gillespie, 1 How. 108, 26 Am. Dec. 696; Poindexter v. Henderson, Walk. (1 Miss.) 176, 12 Am. Dec. 550; Van Rensselaer v. Radcliff (N.Y.), 10 Wendell 629, 25 Am. Dec. 582; 28 Am. Jur. 319; 32 Am. Jur. 204.
Appellee is estopped to obtain injunction on account of having participated in sale of timber.
Barron v. Federal Land Bank of New Orleans, 182 Miss. 50, 180 So. 74; Maloney v. Wilkinson (La.), 129 So. 374; Matthews v. Brown, 148 Ark. 112, 228 S.W. 731; 50 A.L.R. 788, 810; 19 Am. Jur. 781.
McNeil, Jones Zama, of Hazlehurst, for appellee.
During the life of a sixteenth section lease the timber on sixteenth section lands cannot be sold except to, or with the consent of, the lessee.
Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; State ex rel. Attorney General v. Dunnam et al. (Miss.), 67 So. 461.
It is the contention of the writer that since this sixteenth section land was leased in 1853 that the right of possession, supervision and control was lost by the board of supervisors, and that 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.
Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3; Lewis v. Mayer, 116 Miss. 454, 77 So. 297; Coleman v. Holden, 88 Miss. 798, 41 So. 374; Wasky v. Chambers, 224 U.S. 564, 57 L.Ed. 885.
The board of supervisors would not have the right to enter upon the land in controversy without the consent of the lease holder.
Crowell v. N.O. N.E.R. Co., 61 Miss. 631; 36 C.J. 50.
There appear to be only two exceptions to this established rule, so far as the rights of a lessee of sixteenth section land are concerned. First, the board of supervisors of a county or its representatives may enter the sixteenth section land of the lessee to prevent waste; and second, by virtue of Sections 6762 and 6763, as construed in the case of Pace v. State ex rel., 191 Miss. 780, 4 So.2d 270, interpreting these statutes, the board of supervisors of a county may enter the land of the lessee for the purpose of exploring same for oil, gas or other minerals.
Of course, under the first exception, if the lessee began to cut and sell the merchantable timber from sixteenth section land the board of supervisors would have the right to prevent this, or if the timber on the land was subjected to a cyclone or fire and the lessee did nothing to prevent the waste of timber the board of supervisors would have the right to enter the land for the purpose of removing the timber. These are the only exceptions to the general rule heretofore announced where the board of supervisors or their representatives have any authority to disturb a lessee in the possession of his lease of sixteenth section land.
The complainant, appellee here, is entitled to injunctive relief, as prayed for in his bill.
Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 So. 298, 7 Am. St. Rep. 671; Bibby v. Bunch, 176 Ala. 585, 50 So. 916; 14 R.C.L. 347; 5 Pomeroy's Equity, Sec. 495.
It is essential to an equitable estoppel that the person asserting the estoppel shall have done or omitted some act or changed his position in reliance upon the representations or conduct of the person sought to be estopped.
Staton v. Bryant, 55 Miss. 261; Chew v. Calvert, Walk. (1 Miss.) 54; 21 C.J. 1133, Sec. 134.
In order to create an estoppel in pais the party pleading it must have been misled to his injury; that is, he must have suffered a loss of a substantial character or have been induced to alter his position for the worse in some material respect. As otherwise expressed, where no available right is parted with and no injury suffered there can be no estoppel in pais.
21 C.J. 1135, Sec. 136.
Argued orally by W.S. Henley, for appellant, and by R.L. Jones, for appellee.
Appellee Foster was the owner of an unexpired ninety-nine year agricultural lease of 50 acres of sixteenth section land in Copiah County. The lease was made in 1853. When this suit was begun it had about ten years to run before it expired. In addition he owned a like lease on 90 acres of adjoining land. The timber on the 50 acres is involved. After Foster acquired his agricultural lease on the 50 acres the board of supervisors of Copiah County sold and conveyed the merchantable timber thereon to the appellant Hood. Hood was proceeding to cut and remove the timber when Foster filed his bill to enjoin him therefrom on the ground that he, Foster, by virtue of his agricultural lease became the owner of the timber to the extent of estovers, which right would suffer irreparable injury by the removal of the merchantable timber. A temporary injunction was granted. The cause was heard on original bill, answer, motion of Hood to dissolve the injunction, and on evidence, resulting in a decree making the injunction perpetual. From which decree Hood prosecutes this appeal.
An agricultural lessee is entitled to what is known in the law as estovers, which is the right of the tenant to use during his lease whatever timber there may be on the leased premises necessary to promote good husbandry. 1 Bouv. Law Dict., Rawle's Third Revision, page 1084. The right includes, when necessary for that purpose, timber for fencing, bridges, corn cribs, cotton houses, fire wood, repairs and other necessary purposes. The main question in this case is whether or not the board of supervisors has the right under the law during such an agricultural lease to sell the merchantable timber on the leased premises and permit it to be removed by the purchaser over the protest of the lessee.
Ninety-nine year leases of sixteenth section lands are no longer permitted by law. Section 6759, Code of 1930, provides that these lands not in a municipality may be leased for a term of not exceeding fifteen years and in a municipality for a term not exceeding twenty-five years. Sections 6761 and 6762, Code of 1930, provide for the sale of the timber on such lands and the leasing of the mineral therein. Section 6763, Code of 1930, provides as follows: "Every such lease shall empower the lessee to enter upon the premises leased and explore and develop such premises for oil, gas, or either of them or such other mineral as may be included in the terms of said lease and to do all things necessary or expedient for the production and preservation of any of such products; and shall inure to the lessee, his heirs or assigns."
There is no such statute with reference to the purchaser of the timber. In order to hold that the right of the purchaser of the timber is superior to the tenant's estovers right, as we view it, it would be necessary to overrule former decisions of this court. In Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1, 4, the court used this language: "And, moreover, when we remember that these leases had 70 years and more to run, during which time the board could not sell [ the timber], except to [ the lessee], or with the consent of the lessee, the inadequacy of price is not so great as it would otherwise seem to be." (Emphasis ours.) In that case the lumber company was the ninety-nine year lessee and also the purchaser of the timber. The question was whether or not the timber could be sold at all. The court held that it could provided it was sold to the lessee.
In Fernwood Lbr. Co. v. Rowley, 110 Miss. 821, 71 So. 3, that language used in the Dantzler Lbr. Co. case was approved. The court expressly held that the right to sell the timber during the lease was "only to, or with the consent of, the lessee of the land."
In Lewis v. Myer, 116 Miss. 454, 77 So. 297, there was involved the question whether the lessee of sixteenth section lands had such an interest in the timber thereon that he might recover on a note given him in compromise by one who wrongfully cut the timber on the leased premises. In the opinion the court used in part this language: "It is argued that the lessee of the sixteenth section did not have the right to cut the merchantable timber standing on the land, except when the timber was to be used for estovers, and therefore he had no cause of action. We do not think that this is an open question in this state. In the recent case of Fernwood Lbr. Co. v. Rowley, 110 Miss. 821, 71 So. 3, this court expressly decided that the owner of the lease to a sixteenth section had such an interest in the timber growing on the land as would entitle him to recover damages for the wrongful removal of the timber by a third person. It was also decided in that case that the board of supervisors did not have the power to convey the timber to any one save the lessee or his assignees."
There would be no way of finding the line of demarcation between the agricultural lessee's right of estovers and that of the purchaser of the timber. In one instance the lessee might need all of the timber for estovers and in another he might not need one-third of it. Of course the quantity of timber on different pieces of land varies widely.
It is argued that the principles laid down in Pace v. State, 191 Miss. 780, 4 So.2d 270, 275, are decisive of this question in favor of Hood, the purchaser of the timber. We are of opinion there is no merit in that contention. There was involved in that case not timber but minerals. Timber is on top of the ground and minerals are under the ground. This language used in that case shows the radical difference in the two propositions: "The necessity of obtaining the consent of the agricultural lessee to cut and remove the timber for this land is due to the fact that he is entitled to use such portion of it as may be needed for certain purposes." (Meaning, of course, estovers.) The court held that that principle had nothing to do with the minerals. The reason is at once manifest. There is no substantial connection between timber rights and mineral rights. Oil and gas are fugitive products and must be presently taken else they may be lost. Timber is just the opposite. In fact it appreciates in value as time passes. The ninety-nine year leases are expiring all over the state, some of them have already expired, and in a few years all will have passed out of the picture; and in the meantime the timber on the land is increasing in quantity and growth year by year. Therefore, there will be more timber when the leases expire than there is now. Thus it is that ultimately the township schools on the general average throughout the state will reap a profit by waiting. Bidders will then be free of counterclaims and adverse interests and will therefore pay more.
Construing the statutes involved in the light of those decisions it appears that the conclusion is inescapable that the timber can not be sold without the consent of the agricultural lessee.
It is argued on behalf of Hood that Foster was estopped from maintaining his bill by the fact that when the board of supervisors sold the merchantable timber to Hood, Foster was one of the bidders. There is no merit in this contention. There is nothing whatever in the record tending to show that Hood was in any manner misled by Foster's bidding. On the contrary, the record shows that he knew Foster owned the agricultural lease of the land and wanted the absolute right to the timber. As shown above, Foster, and he alone, had the right to purchase the timber while his lease existed; that no one else had that right without his consent. His idea evidently was that he could get the absolute right to the timber at that sale. We are unable to see anything in this that could have misled Hood in any manner.
Hood contends that equity was without jurisdiction because Foster had a complete and adequate remedy at law. That contention is answered by the decision in the case of Moss v. Jourdan, 129 Miss. 598, 92 So. 689. The court held in that case, quoting paragraphs 5, 6 and 7 of the syllabus:
"The essential features of an `irreparable injury' are: (1) That the injury is an act which is a serious change of, or is destructive to, the property it affects either physically or in the character in which it has been held and enjoyed. (2) That the property must have some peculiar quality or use such that its pecuniary value, as estimated by a jury, will not fairly recompense the owner for the loss of it.
"Land is per se property of peculiar value, and will be protected by injunction without reference to its quality, use, or value.
"If a trespass is continuous in its nature, and repeated acts of trespass are done or threatened, although each of such acts taken by itself may not be destructive or inflict irreparable injury, and the legal remedy may therefore be adequate for each single act, if it stood alone, the entire wrong may be prevented or stopped by injunction."
Foster's case comes under those principles.
Affirmed.