Robertson v. H. Weston Lumber Co.

87 So. 120, 124 Miss. 606

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21362
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The state revenue agent brings this action against the defendant on behalf of the inhabitants of certain townships for the cutting of timber on lands given in lieu of sixteenth section lands. The lands in question are situated in Hancock county, and the suit is for timber cut after the 28th day of June, 1908; it being alleged that on that day and thereafter there were standing, being, and growing on the said lands large quantities of timber, trees, saplings, and younglings of great value. The suit was brought in the name of the state of Mississippi as trustee for certain townships, it being alleged that the property described was the property of the state of Mississippi as a trustee, and that the H. Weston Lumber Company by and through its agents and employees, without the consent or authority of the state of Mississippi, entered upon said lands, and did willfully, unlawfully, recklessly, and intentionally cut down and carry away and convert to its own use and benefit great quantities of said timber, and did kill and destroy great quantities of said trees, saplings, and younglings on said land, etc., and demands a judgment in the sum pf twenty.thousand dollars for such trespass. There is also a count for the statutory penalty for the timber cut, but this count is abandoned,

The defendant filed a plea in answer to said declaration in numerous paragraphs, in which it was alleged that the injuries and wrongs- sued for were committed in the years 1907 and 1908, and are barred by the statutes of limitation. Second, that the board of supervisors of the counties wherein the townships are situated, advertised the merchantable timber on snch lands for sale, having authority so to do, and that the H. Weston Lumber Company was the biggest and best bidder for said timber and had paid therefor; and that the plaintiff, the revenue agent, had no right to such timber at the time the same was cut and removed, which, it is alleged, was removed within the limits' fixed by the deeds conveying the timber under its purchase from the said boards of supervisors. That the defendant, the H. Weston Lumber Company, cut the timber on said lands under and by virtue of said deeds as required by law on or before the 25th day of June, 19.08, and that on the 27th day of November, 1907, the revenue agent of the state of Mississippi filed a suit in the chancery court of Hancock county where the lands were situated on behalf of the state of Mississippi and all counties in the state interested in the said land, and that some time after the filing of the said bill' Mrs. Lois Angela Patton was the owner of the timber on the land set out in the declaration and exhibited her bill of complaint- on the chancery side of the United States District Court for the Southern Division of the Southern District of Mississippi, and that on the 25th day of June, 1908, the revenue agent filed an amended bill on behalf of the plaintiff against the defendant, and in said bill sought to -set aside the conveyance of the timber on the land described in the declaration, and in his amended bill alleged that the defendant, the H. Weston Lumber Company, had cut all of the timber off of said lands and had-either completely denuded the land of all timber or, if any had been left on the land, it had been ruined for commercial purposes, and, under the theory that it had been cut or destroyed, sought to recover of the said H. Weston Lumber Company for the said counties as well as the inhabitants of the said townships the full value of the timber belonging to the said townships as set out in the bill. That Mrs. Patton had asked for an injunction against the state revenue agent, the land commissioner, and their attorneys, enjoining them from further proceeding against her and the H. Weston Lumber Company on the theory that she was the owner of the timber on said lands, and that the said suit would becloud her rights and destroy her contract with the Weston Lumber Company for cutting said timber. That by the amended bill in that suit the revenue agent by an agreement with Mrs. Patton amended his bill and sought to recover of and from the H. Weston Lumber Company and each of its stockholders and directors and Mrs. Patton the value of the timber., and alleged that the Weston Lumber Company had either cut all of the timber or had ruined the same from a timber standpoint. The pleadings in that suit are attached to the pleas to this suit.

It is alleged that the papers originally filed in the federal court in a former suit have been lost, but that under the said bill in the former suit and the amended bill therein such proceedings were had that on the 25th day of June, 1908, said cause was submitted to the chancellor, said Mrs. Patton agreeing in consideration of the. submission of the said cause at that time and the amended bill making her a party thereto to waive that part of her injunction and let the cause proceed in the state court., and that said cause proceeding to hearing, and decree was entered adjudging that the H. Weston Lumber Company had destroyed the full value of all timber on the lands as described in the said bill of complaint, which bill contained the lands involved in this suit, and that judgment was rendered against the Weston Lumber Company for fifty thousand dollars for the timber cut and for the damage done to the remaining timber, a copy of the said decree being marked an exhibit to the pleas of the- defendant in this cause, which decree shows that the court adjudged that the fifty thousand dollars was the reasonable value for the timber cut and the damage done to the remainder of the timber standing, which the decree adjudged to be practically destroyed as a timber proposition, and that a judgment was entered in the federal court against the revenue agent and the land commissioner, enjoining them from interfering with the cutting of the timber growing on such lands, which decree of the federal court is also made an exhibit to the pleas.

It is further alleged that the Weston Lumber Company has paid the full amount of the judgment or decree and complied with said decree in every respect, and that the money has been distributed to the several counties for the use of the townships for which the said lands had been donated in lieu of sixteenth sections; and that by reason of the acceptance of said money and the entry of such judgments the revenue agent is now estopped to bring this suit. The alleged lease and contracts with the boards of supervisors are made exhibits to the pleadings for the defendant and the moneys paid are shown by exhibits so as to show what each county received for each township for sixteenth sections.

The decree of the federal court above referred to set out as exhibit to the bill recites that the cause being set down for final hearing upon a written agreement entered between the parties by which said cause was adjusted, and one of the provisions of the said agreement being that a decree should be entered in accordance with the prayer of the complainant’s bill, it is thereupon ordered:

“That said defendants, Wirt Adams and E. H. Nall, land commissioner of the state of Mississippi, their respective agents, attorneys and representatives,- and successors in office, be and they are hereby enjoined and restrained from suing or otherwise interfering with the complainant, her agents, assigns or vendees, in case she conveys the same in the cutting and removing of the timber standing, growing or being upon the land situated in Hancock county and described in the bill of complaint, setting forth the description, and that said defendants, their agents, servants, deputies and successors in office are hereby enjoined and restrained from interfering with the said complainant, her agents,- servants or vendees, by suit or otherwise, in selling and marketing said timber on said lands, or the lumber sawn therefrom, said injunction to operate during tlie life of the several leases or contracts under which said complainant .acquired said timber or timber rights upon said lands as set forth in said bill of complaint, and as shown by the records of deeds of Hancock county, Miss., referred to in the bill.”

The pleas of res judicata set forth above and of the statute of limitations and estoppel, with the decree of the federal court and of the former chancery suit attached as exhibits, were demurred to by the complainant, the demurrer overruled, and the complainant declined to plead further, and judgment final was rendered, from which the revenue agent prosecutes this appeal.

The first question for consideration- is the plea of the statute of limitations. It is insisted by the appellant that the statute does not run against the state of Mississippi in the present case for two reasons:

First, because the statute does not run against the state and its subdivisions under section 104 of the State Constitution, which reads as follows:

“Statutes of limitation in civil causes shall noti run against the state, or any subdivision or municipal corporation thereof.”

And, second, because if this be not true, that the revenue agent was restrained by the injunction in the federal court from bringing any suit until after the defendant had finished cutting the timber, and that the suit was brought within the period of the statute, even if it applies after such timber had been cut.

The appellee relies upon the statute of limitations under the theory that tbe state of Mississippi, in the suit, is a mere trustee, and that, as the statute would run against its beneficiary, it would run also against the state; and relies upon certain decisions rendered prior to the adoption of the Constitution of 1890, being Money, County Treasurer, v. Miller, 13 Smedes & M. (Miss.) 531, in which the holding of the court was in accordance with the contention of the .appellee; and, also, Brown v. Board of Supervisors, 54 Miss. 230, which Avas also a suit affecting sixteenth section land. >

We think that a township is a subdivision of the state within the meaning of -section 104 of the ¡átate Constitution. It will be noted on referring to the chapter on sixteenth section lands that such funds derived from leases or other funds belonging to the sixteenth sections may'- be devoted to the building and repairing of schoolhouses or the purchase of furniture for same or necessary school supplies other than books, for a supply of water and fuel, and for the payment of teachers, both by supplementing the salaries of teachers during a public term, and fqr the payment of teachers’ salaries after the common school term shall expire. That the fund is controlled by the trustees selected for the township who shall determine to which of the uses above named such funds may be devoted. It is also provided in this chapter that in order to lease sixteenth section land not situated in a city., it is neces.sary to secure the consent of the inhabitants of the township. The consent of the inhabitants of the township is to be obtained by the township trustees by giving notice in three or more public places in the township for at least five days, calling a meeting of the heads of families in the township to be held at a conveniently located schoolhouse therein on a day to be named in the notice. That on the day named the trustees shall attend, organize the meeting, and take the sense thereof, and unless the inhabitants so consent to the lease, the lease shall not be made for a longer time than one year.

It is well established that the giving of educational instruction is one of the functions of the state and the lands of the state are laid off in townships for the purposes of administering the sixteenth section funds for school purposes.

The former suit, which was sought to be enjoined in the federal court, was a suit by the state in its sovereign capacity, and the federal court had no jurisdiction to enjoin the state from suing in its courts in reference to a matter which was clearly authorized by law. It is true that the federal courts may enjoin a state officer from doing an unlawful act under color of office, or from proceeding under an unconstitutional statute, but the Eleventh Amendment to the Constitution of the United States was written in vain if a sovereign state can be prohibited from suing for its rights by the federal courts by the expedient of enjoining the officers who are authorized by law to act for the state; the state being an impalpable person can only act through its officers, and where a state has a right to bring a suit under a valid law, it cannot be enjoined from doing so. So we think the second proposition of'the appellant is not well taken as to the first plea.

The next subject involved in the suit is the question as to whether the revenue agent is precluded from bringing this suit on the ground that the first suit was res judicata, and that the decree of that court awarding damages for the timber cut, and damage to the timber not cut by reason of the method of cutting so as practically to destroy its value as timber which constituted one of the elements of the fifty thousand dollars for which judgment was rendered, and which was paid and distributed, was an adjudication of its present right to sue for timber not there cut, but at that time practically valueless. The plea of the appellee assumes for its basis in this regard that haying been compelled to pay the full value of the timber, it had a right thereafter to cut and remove the timber because it had paid for it.

We think this contention is fundamentally unsound. The judgment did preclude the revenue agent from suing for any timber whether merchantable or not which had been cut prior to that judgment, and although the judgment rendered did adjudge that the remaining timber was practically valueless, the judgment did not have the effect to transfer the timber to the defendants in that suit. The timber, although, at that time practically worthless on the market by reason of the method of cutting it, was still the property of the township or the state in trust for the township. , Neither the revenue agent, the laud commissioner. nor the court was invested with any statutory or other power to convey the timber to the defendant. However worthless it may have been, it belonged to the state as trusteq for the inhabitants of the several townships. Even though it was valueless at that time, subsequent events may have rendered it valuable at the time it was cut and removed. If„ for instance, a railroad should be built through or near to such tract of land, that might of itself render valueless timber very valuable because of making it available to transportation. Again, the advent of the motor truck as a method of conveyance has brought increased value to timber because of the cheapness thus, afforded in bringing it to market. Again, the demand and customs of the country may so change as to make marketable at one time what was not marketable at another.

The declaration in this case does not seek to go behind the judgment then rendered. Such judgment foreclosed the controversies then existing between the revenue agent and the defendants. It adjudged the revenue agent’s right to recover. It adjudged the amount, in value, of the timber cut and the damage done to the remaining timber, but it did not adjudge, and could not adjudge, that the remaining timber left upon the land could thereafter be cut and removed by the defendant.

The appellant contends that the judgment in the former case was a compromise judgment and that it was not binding on the state for the reason that the revenue agent had no power to compromise the state’s right or the right of the inhabitants of the township for which the state was suing because section 100 of the Constitution requires that—

“No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the legislature from providing by general law for the compromise of doubtful claims.”

This section does not apply to the case before us. The section does not prevent an agreement by judgment for the ascertainment of an amount which is uncertain in its nature. Under.this section of the Constitution where,a liability or obligation is fixed and certain it can only be compromised in the manner provided for the compromise of doubtful claims under the Code chapter on that subject. But Avhere the amount due the state is in its very nature uncertain, it is conipetent for the state or the officer having power to represent it, acting in good faith, to consent to a judgment liquidating the amount due. Tlie section was not intended to prevent the entry of a judgment for a less amount than the amount sued for where the claim was unliquidated and not capable of ascertainment by calculation, or some equally certain manner.,

The appellant further contends that the declaration in the present case is not only for timber then standing on the land of the character denominated as merchantable timber at that date, but embraces timber which has become merchantable since that date by groAvth or by the change in commercial standards making merchantable hoav that which formerly Avas not merchantable. Trees that have grown to such size as to constitute merchantable timber since the date of the sale or attempted sale by the counties to the defendant did not pass by the conveyance even if it was valid, but remained the property of the state in trust for the inhabitants of the’toAvnship. However, as stated above, a judgment in a former case foreclosed all controversy of this character antedating that judgment. The great weight of authority supports the doctrine that a provision in a timber deed as to the size, suitability, or merchantability refers to the time of the conveyance and not to the time of the cutting and removal of the timber. A deed to timber becomes effective.on its being signed and delivered, and delivered, and in the absence of provisions to the contrary will not include such timber as grows subsequently so as to come within the meaning of the term as of the time of the cutting rather than the date of the conveyance. Zimmerman v. Wilson, (Ala.), 77 So. 364; Griffin v. Anderson-Tully, 91 Ark. 292, 121 S. W. 297, 134 Am. St. Rep. 73; Crawford v. A. C. L. Co., 79 S. C. 166, 60 S. E. 445; Evans v. Dobbs (Ky.), 112 S. W. 667; Shiffer v. Broadhead, 126 Pa. 260, 17 Atl. 592; Mills & Williams v. Ivey, 3 Ga. App. 557, 60 S. E. 299; Shippen Bros. Lumber Co. v. Gates, 136 Ga. 37, 70 S. E. 672; Vandiver v. Bird-Matthews Co., 146 Ga. 113, 90 S. E. 960; McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513 and note; Whitted v. Smith, 47 N. C. 36; Whitfield v. Rowland, 152 N. C. 211, 67 S. E. 512; Wilson Lumber Co. v. Alderman, 80 S. C. 106, 61 S. E. 217, 128 Am. St. Rep. 865; Hicks v. Phillips, 148 Ky. 670, 147 S. W. 42; Irwin v. Patchen, 164 Pa. 51, 30 Atl. 436. There are some cases to the contrary, but we think the above announce the sound rule and accord with the weight of authority.

It is insisted by the appellee that the state is estopped in the present case to bring the present suit because it accepted the fruits of the judgment in the former suit, and distributed the proceeds among the several townships entitled thereto, and that they have received the full value for the timber and consequently are estopped to claim that the timber had a value at the time it was cut and converted to the use of the defendant for which the present suit is brought. As indicated in the opinion above, the judgment only has force as an estoppel as of the date it was entered and as to controversies then in litigation. The judgment was compensation for the timber then cut and for damage then done to the timber not cut. But it in no way is inconsistent with the assertion of the revenue agent in the present suit. As above stated, the timber standing on the land was not conveyed to the defendant. Under color of an injunction the defendant entered upon the land and cut the remaining timber, but the judgment upon its face does not undertake to give the defendant any right to the timber which was subsequently cut and the receipt of money from a judgment can not operate as an estoppel against the state in the present suit. Of course, the doctrine of estoppel can be applied to the state or its subdivisions when the judgment is about a controversy to which the state is a party and deals with the subject-matter which the court is competent to adjudicate in a controversy. The doctrine of estoppel is not asserted against the state in all cases where an individual might be estopped because an individual is competent to make agreements and such agreements may be valid when made by an individual where the state or its officers might not hake power to make it, and if they had no power under the law to make the agreementj the state would not be bound by the unauthorized act of the agent in exceeding his authority. We do not think the pleadings in the present case warrant the application of the doctrine of estoppel against the state in this case.

We think the court below erred in not sustaining the demurrer to the pleas referred to, and the judgment will be reversed, the demurrer sustained, and the cause remanded with leave to the appellee to plead over.

Reversed and remanded.