Baker v. Davis

57 S.E. 62, 127 Ga. 649, 1907 Ga. LEXIS 448

Opinion

Lumpkin, J.

(After stating the foregoing facts.)

1-3. Suits against joint trespassers residing in different counties may be brought in the county of the residence of either. Civil Code, §5872. One who unlawfully cuts the timber of another is a trespasser. He may be sued as such, although he acts under orders of a third party. If one wrongfully enters on the land of another and cuts trees, he is a trespasser and liable, no matter who told or directed him to commit the tort, or whether such person would also be liable or not. The master and servant may both be liable for such a trespass of the former, committed by command or under authority of the latter. Southern Ry. Co. v. Grizzle, 124 Ga. 735. Bach of them is a substantial defendant. Mashburn v. Dannenberg Co., 117 Ga. 568 (13); Central R. Co. v. Brown, 113 Ga. 414. If joint trespassers are insolvent or the damage irreparable, instead of suing for damages, equity may grant relief by injunction. And the proceeding may be brought in the county of the residence of one of the defendants against whom substantial relief is prayed. Here all of the defendants are sued as joint trespassers, and both injunction and damages are prayed against them. We think it is quite evident that the defendants who are alleged to be actually committing the trespass on the realty and cutting the timber, and who are sued as joint trespassers with the company employing them, and against whom both damages and injunction are ■sought, are substantial defendants. This point is practically controlled by the decision in Wall v. Mercer, 119 Ga. 346. This differs from the case of Meeks v. Roan, 117 Ga. 865, where the appointee or trustee under a deed containing a power of sale was proceeding merely to exercise that power for the benefit of another person residing in the State, and where the appointee had no interest in the subject-matter. He was not trespassing on real estate or ■committing any like positive tort, nor was he sought to be held liable as a joint tort-feasor. So likewise in Railroad Commission v. Palmer Hardware Co., 124 Ga. 633, where railroad commissioners .fixed a rate from Atlanta to certain points, and it was sought to compel the commissioners to leave the counties 'where they resided and go to the county where the main office of one of the railroad companies was located, upon the mere allegation that the companies would-obey, the ordér issued by the commissioners and lower the rates from Atlanta, thereby indirectly injuring the business of certain dealers of the county where the proceeding was filed. Moreover, the interests -of the plaintiffs and the railroad companies, were not antagonistic to each other, but both were antagonistic to-the railroad commissioners. Nor is this similar to the case of Townsend v. Brinson, 117 Ga. 467, which was not a case of trespass on real estate-or cutting, timber, but of levying a distress warrant; and it was held that substantial equitable relief was prayed only against the resident of another county, and the defendants-residing in the county, of the suit would have been merely nominal parties to an equitable proceeding in the county of the substantial defendant. Besides, no allegations of insolvency or irreparable damage appear from the report. In Etowah Milting Co. v. Crenshaw, 116 Ga. 406, an equitable proceeding was brought in Bartow county to' enjoin a corporation of Fulton county from obstructing the flow of water of a stream and for damages. It was held that the right conferred by statute to bring 'an action for damages in the county where the cause of action originated, did not' include a. right to obtain equitable relief there, if the defendant resided in another county. Many of the cases on the subject will'be found collected in Railroad Commission v. Palmer Hardware Co., supra, and an examination of them will show how each differed from the present case.

Here the petition alleged that three of the joint defendants were citizens and residents of Coffee county, where 'the bill was filed, and that the fourth, the Taylor-Cook Cypress Company, had its principal office in Glynn county. It alone pleaded to the jurisdiction, alleging that the other defendants were its employees. They were personally served by the sheriff of that county. They demurred to the petition and answered it. True, they did deny in general terms the paragraph of the petition which alleged their residence .to be in Coffee county, and that of the company in Glynn. But they filed no plea to the jurisdiction, nor set out where they did reside, and a part of such denial was in conflict with the company’s own contention as to its domicile. It was conceded on the hearing that one of them permanently, resided in Florida, but temporarily resided in Coffee county. So far as was disclosed on the hearing of the application for injunction, the petition appears to have been properly filed in Coffee county. If in fact there was no cause of action against the defendants alleged to be of that county, and no venue fixed there by their residence, the jurisdiction might also fail as.to the corporation of Glynn county. Central Ry. Co. v. Brown, 113 Ga. 414 (3); Ross v. Battle, 117 Ga. 877.

4, 5. A plea in abatement was filed by the Taylor-Cook Cypress Company, on the ground that a previous suit had been filed in ■Glynn county and was there pending, involving the same subject-matter. An equitable proceeding had been filed by the same plaintiff against the Taylor-Cook Cypress Company in Glynn county. But there Baker, the plaintiff, alleged, that, under a proper construction of the original grant from Vickers, the defendant company only had the right to eut timber measuring more than fifteen inches in diameter two feet from the ground, and that by reason of the growth of trees since the contract was made, the plaintiff was entitled to have the cutting of trees measuring less than eighteen inches enjoined. This evidently did not involve the questions presented in the case at bar nor seek the same relief. But it is contended that in that suit the defendant amended its answer, alleging the extension of the time allowed for cutting by the original grant or lease from Vickers; that it, as grantee or assignee of the Ocmulgee Eiver Lumber Company, had succeeded to the rights of that company, and had made a tender for the purpose of continuing the time for cutting; and that Baker was interfering with the agents of the defendant and was trespassing and cutting timber. By way of cross-petition injunction was asked to restrain him from cutting any timber and from interfering with the hands of the defendant. This was an answer in the nature of a cross-proceeding to enjoin Baker from cutting timber or interfering with the hands ■of the company and to recover damages of Baker. No action was taken on the amended answer except to order it filed. The present proceeding is to enjoin the Taylor-Cook Cypress Company and certain persons with it from committing an alleged trespass or cutting any timber, on the ground that they had no right to do so, and to recover damages against them. True, the amended answer of the defendant in the former case set up the extension of the time for cutting the timber. But a plea in. abatement is based on the principle that a plaintiff can not be allowed to harrass a def endaht with different suits for the same thing. He is not doing this. His suits are for different causes. They are neither identical in subject-matter nor in parties. It is the defendant who sought to carry into' the former ease the allegations in regard to extending the time for cutting the timber. It now says that it has recently filed sijch an amendment to its answer, and that therefore the plaintiff’s suit should abate. It could withdraw or change its answer, and the plaintiff could not prevent it. His second suit for a different cause of action with additional parties will not abate because of such a plea. Civil Code, §§3737, 5094.

6. The demurrer set forth no sufficient ground for refusing the injunction.

7. Under the original grant or “timber lease” from Vickers, the time allowed for cutting the timber was fifteen years. This lease •or conveyance of timber passed by regular transfers to the Ocmulgee River Lumber Company, and from it to the Taylor-Cook Cypress Company. An instrument dated twenty days after this last conveyance was executed by Vickers to the Ocmulgee Biver Lumber Company. It recited that the timber had become the property of that company, and granted to it an extension of time in which to cut it. The paper recited a consideration, granted an extension of one year and a privilege, if it so desired, to have a further extension of another year on certain payments. It is insisted that this was unilateral and without consideration. Not so. The consideration of $583.50 recited was for the whole contract, including not only the one year’s actual extension, but also the privilege of a further extension for another year. Wellmaker v. Wheatley, 123 Ga. 201; Walker v. Wadley, 124 Ga. 275. A contract for a privilege or option may be made for a consideration, and the maker can not withdraw during the time fixed in the contract within which the other party has the right to exercise the option. This is very different from cases where a mere option' is given and not accepted, or where the consideration of one promise is only the acceptance or mutual promise of the other party.

As to the year included'in the actual extension the present case seems to raise no controversy. Whether the defendant company •cut during that year by verbal -or written authority from the Oc mulgee River Lumber Company would give no cause of action to-Baker, who took under Tickers. Morgan v. Perkins, 94 Ga. 353.

8-10. The controlling question is whether the Taylor-Cook Cypress Company has acquired a right to cut timber during the additional year not actually contracted for, but covered by the option or privilege to continue. The contract gave to the Ocmulgee Biver Lumber Company such an option or privilege to extend the time for cutting for one year on certain terms. It contained no such words as assigns, successors, or the like. It was a right to exercise a choice or option by the company named, and by no other person. That company did not exercise the 'option. The present defendant' seeks to do so, on the ground that it had purchased the timber from the Ocmulgee Biver Lumber Company prior to the date of the-contract named, and that it tendered the money provided therein both to Tickers and Baker, to whom Tickers conveyed the land and timber after the date of the contract, and with notice of it.. It was alleged that the Ocmulgee Biver Lumber Company conveyed to the -defendant company after the former had acquired this, contract right, but the proof is to the contrary. Had the defendant company the right to exercise the option, tender the money and demand an extension of time for cutting? The contract, as. stated, contained no words of assignability — nothing referring to-assigns. Had it done so, there was no attempt to assign it. If' the defendant, therefore, acquired any right to exercise the option, under it, such right must have arisen by operation of law. Two-possible ways for this may he suggested: first, that the Ocmulgee-Biver Lumber Company had previously sold and conveyed the timber to the defendant, and, when- it acquired this new right, such right passed through it as a conduit to the defendant. Why? It. may be mentioned that the conveyance to the defendant does not appear in the record to have been accompanied by a warranty.. But suppose it was, what would be the result ? The estate, interest, or rights appurtenant thereto or connected therewith.which were covered by the conveyance and the warranty could not be adversety claimed by the grantor; and if such grantor afterward acquired title thereto, it would pass to and vest in his grantee. Civil Code,. §3609. But there was nothing to prevent the grantor from purchasing an additional right or estate not adverse to or inconsistent with that which it granted. Thus one who buys and then -con veys a life-estate, -with, warranty, is not prevented from afterward buying and holding the remainder. Nor was there anything appearing in this record which would prevent the grantor from purchasing a right after the end of the time fixed in his conveyance. The right would not pass to the defendant on the idea of estoppel or warranty.

Secondly, it is said that the contract provided for' an extension of the original time, and that this was in the nature of a covenant running with the land. Had this contract been first made, and then the Ocmulgee River Lumber Company had conveyed to the defendant, the case might have been very different. Wilkerson v. Pettit, 47 Barb. 230. But when the contract was made, the lumber company had already sold and conveyed the timber, including the privilege of cutting in fifteen years. It had neither land nor timber to which to attach an appurtenance or a covenant. In order to have a covenant running with the land, there must be land in the hands of the covenantee, or conveyed by the covenantor, for it to run with. If there is no land to run with, there can be no covenant running with it. A conveyance to A. of a right not inconsistent with his previous grant to B. doth not, by operation of law, run with the land held by B. Whether one person might by express contract secure a covenant inuring to the use of and running with the land of another is not in question. No such contract was made. What we hold is that the law will not ordinarily by implication attach a covenant made with A. to land of B. Nor will this result from a recital in the contract that A. is the owner, when in fact he has previously conveyed it away.

11. It is contended that the plaintiff is estopped from denying that the defendant had acquired all of the rights which the Ocmulgee River Lumber Company would have had under the contract of May 21, 1905, because, on the hearing of an application for an ad interim injunction under the petition filed in Glynn county, one of the counsel for the present plaintiff stated to the court, in the presence of Baker and Vickers, that the Taylor-Cook Cypress Company would have a further year from and after June 23, 1906, upon the payment of $50 per lot, within which to cut and remove the timber. How this came to be said is not distinctly shown, but apparently it was in arguing the ease to the presiding judge. It would greatly curtail the scope and freedom of argu ment if everything- said by counsel in the heat of debate should be taken as a solemn admission in judicio which his client would be estopped from denying in every other case. If, in discussing a case, every suggestion of passing statement of each attorney touching what might be the effect of a deed, will, or other instrument would irrevocably fix that construction upon it, the courts might be much hampered in placing a proper judicial construction-, on the paper, and might sometimes be compelled to construe the same clause in very conflicting ways, none of which might be the correct way. The eloquence of the advocate may sometimes soar a little without being weighted down with the fear of.estoppel. This statement does not seem to have been made to the defendant company', or intended as a basis of action by it. Nor does it appear that the company or its officers were misled by such statement or relied on it, or acted or failed to act on the faith of it. The general superintendent does state in his affidavit that “had deponent known at that time that it would be contended that said provision of said indenture was invalid, he copld then, for defendant, have cut and removed most, if not all, of the said sawmill timber within the said original time." Perhaps he could have done so; but it does not appear that the company would have- done so, or that it was misled or deceived into not doing so by any statement or action on the part of the adverse party. Delaware Ins. Co. v. Pennsylvania Fire Ins. Co., 126 Ga. 380.

,12. It seems that, on the hearing of the application for injunction in the ease now before us, the only contentions made were those dealt with in the preceding parts of this opinion. Each side claimed the timber and asserted the right to cut it, and that interference with its use thereof by the adverse party would cause irreparable damage.. Evidently the presiding judge based his refusal of an injunction on the ground that the defendant, not the plaintiff, owned the timber and was entitled to cut it, and not because the damage would not be irreparable, or because of contested issues of fact. In this view we think he erred, as will appear from what has already been said, and an injunction should have been granted. McConnell Bros. v. Jones Naval Stores Co., 125 Ga. 377; Huxford v. Southern Pine Co., 124 Ga. 181 (2).

Judgment reversed.

All the Justices concur, except Fish, G. J., absent.