Roots v. Boring Junction Lumber Co.

92 P. 811, 50 Or. 298, 1907 Ore. LEXIS 210

• Court: Oregon Supreme Court
• Decided: December 17, 1907
• Status: Published

Opinions

Mr. Chief Justice Bean

delivered the opinion.

1. By the decree from which this appeal is taken, the defendant was enjoined and restrained from cutting or removing- any timber or wood, whether cut or otherwise, from section 31, regardless of its size, quality or dimensions, except' the saw timber from a strip 11 rods wide along the east end of the S. | of S. W. ¿ of such section, and it was also enjoined and restrained from cutting or removing any trees or timber from section 6 under 12 inches in diameter; but it was authorized and permitted to take, at any time during the life of the contract, all the trees or timber on section 6,12 inches and upwards in diameter, whether suitable for manufacturing into lumber or not. After the rendition of the decree, defendant continued to cut and manufacture, into cord wood, trees 12 inches and upwards in diameter from the land mentioned. Plaintiff now moves to dismiss defendant’s appeal on the ground that, by thus continuing to cut and remove wood, it accepted the benefits of the decree, and therefore cannot appeal therefrom. The law is well settled that a party cannot claim the benefit of a judgment or decree and at the same time appeal from it. The right to appeal and to enjoy the fruits of a judgment or decree are totally inconsistent, and an election to take one course is a renunciation of the other: Moore v. Floyd, 4 Or. 260; Portland Construction Co. v. O’Neil, 24 Or. 54 (32 Pac. 764); Bush v. Mitchell, 28 Or. 92 (41 Pac. 155). But the defendant in cutting and removing wood from section 6, was not acting under the protection of the decree or by virtue of any rights given it thereby, but under a contract with the owner of the land. The plaintiff sought by this suit to enjoin it from taking any trees or timber under 12 inches in diameter and any timber over that size, except such as was suitable for being manufactured into lumber. The court granted the relief prayed for as to trees under 12 inches in diameter, and refused it as to all over that size,-thereby leaving defendant to proceed, so far as such timber was concerned, as if no suit had been brought.

2. It is not necessary to consider what defendant’s situation would have been if plaintiff had appealed from that portion oE the decree refusing to enjoin it from taking or cutting such timber, and given a stay bond. The record, however, does not disclose that the plaintiff did so appeal, although it was said at the argument that, after defendant’s appeal, plaintiff took a cross-appeal, and a motion is on file to dismiss such cross-appeal. No notice or undertaking on such appeal has been filed in this court, and therefore the appeal, if taken, has never been perfected. While it may not be necessary where both parties to a judgment or decree appeal, to file separate transcripts, it certainly is essential that the notice and undertaking on' an appeal shall be filed within the time provided by law in which to file a transcript, or otherwise this court does not acquire jurisdiction of the appeal. Since the plaintiff has not complied with this rule, it is unnecessary to consider the motion to dismiss his appeal, or any of the provisions of the decree of which he complains.

3. We pass then to a consideration of the questions arising on defendant’s appeal. It is insisted at the outset that the court is without jurisdiction, because this is a proceeding, under Section 348, B. & C. Comp., to recover treble damages for the wrongful and unlawful cutting of timber on plaintiff’s land. The reference in the complaint to Section 348 and the allegations attempting to state a cause of action under such section may be treated as surplusage, as was done by the trial court, and enough remains to constitute a cause of suit for injunction to restrain a trespass or- the commission of waste.

4. It is alleged in the complaint that plaintiff is the owner of certain described lands, and that there is growing and standing thereon a large quantity of trees and timber suitable for cord wood of great value to plaintiff; that between certain dates, defendant wrongfully and unlawfully entered upon such lands and cut and removed therefrom 2,000 cords of wood; that it has a large force of men and teams engaged in cutting and hauling timber and wood from such premises, and threatens to and will, unless restrained, remove the wood and timber therefrom, -to the irreparable injury of plaintiff’s estate, and to his great damage. These are facts sufficient for injunctive relief, for the rule is firmly established in this state that a court of equity will interfere to restrain a trespass or stay waste, threatened or being committed, when the acts complained of go to the substantial injury or destruction of the estate or will cause irreparable damage to the plaintiff, such as cutting timber, removing ore, and the like: Allen v. Dunlap, 24 Or. 229 (33 Pac. 675); Mendenhall v. Harrisburg Water Co., 27 Or. 38 (39 Pac. 399); Sheridan v. McMullen, 12 Or. 150 (6 Pac. 497); Smith v. Gardner, 12 Or. 221 (6 Pac. 771: 53 Am. Rep. 342); Elliott v. Bloyd, 40 Or. 326 (67 Pac. 202). Allen v. Dunlap, 24 Or. 229, was a suit to enjoin a trespass on a mining claim. Objection was made to the jurisdiction of the court, but Mr. Justice Lord says:

“The general rule that a court of equity will refuse to take jurisdiction and award even a temporary injunction, in cases of a mere trespass, is conceded; but there is an established exception in cases of mines, timber and the like, in which an injunction will be granted to restrain the commission of acts by which the substance of an estate is injured, destroyed or carried away. In such ease, the injury being irreparable or difficult of ascertainment in damages, the remedy at law is inadequate.”

Mendenhall v. Harrisburg Water Co. 27 Or. 38 (39 Pac. 399), was a suit to enjoin the defendant from taking possession of land belonging to plaintiff and cutting timber and enlarging a ditch thereon, and the court sustained the suit and granted the injunction. In that case Mr. Justice Moore, after quoting from Smith v. Gardner, 12 Or. 221 (6 Pac. 771: 53 Am. Rep. 342), said:

“In the ease at bar the evidence shows that the defendant threatened to widen the ditch beyond the limits of its right of' way, and throw the material taken therefrom upon plaintiff’s land; to construct and maintain a dam, the backwater from which would destroy the ford used by the plaintiff and her husband; and to cut and destroy the timber growing along the banks of the ditch outside of the right of way. The injury complained of is more than a mere trespass; it goes to the destruction of plaintiff’s estate.”

Sheridan v. McMullen, 12 Or. 150 (6 Pac. 497), was a suit, by a landlord against his tenant to enjoin him from cutting timber on leased premises. The jurisdiction of a court of equity was challenged on the ground that plaintiff's remedy was by an action at law for damages, but Mr. Justice Lord says:

“The remedy by injunction to stay waste, threatened or being committed, has been so often asserted, and is now so fully established, that the jurisdiction is seldom questioned. It has almost entirely superseded the common-law action of waste, and in a great measure taken the place of the action on the case for damages, ordinarily resorted to whenever any remedy is sought at law, because of their inadequacy in many cases, and the remedy by injunction is so much more expeditious and complete.”

In support of this position, the learned justice cites Fleming v. Collins, 2 Del. Ch. 230, in which it was held that the cutting of timber is an injury of irreparable nature and remediable in equity, by whosoever committed, and that equity, having jurisdiction to restrain waste, will decree an account and satisfaction for the waste committed. He also refers to and quotes approvingly, Judge Story's summary of this equitable jurisdiction, in which he says:

“The inadequacy of the remedy at common law, as well to prevent waste as to give redress for waste already committed, is unquestionable, and there is no wonder that the resort to the court of law has in a great measure fallen into disuse. * * The remedy by a bil-1 in equity is so much more easy, expeditious and complete, that it is almost invariably resorted to. By such a bill not only may future waste be prevented, but, as we have already seen, an account may be decreed and a compensation given for past waste: 2 Story, Equitable Juris. § 917.

In Livingston v. Livingston, 6 Johns. Ch. (N. Y.) 497 (10 Am. Dec. 353), Chancellor Kent says: “This protection (by injunction) is now granted in ease of timber, coals, lead ore, quarries, etc.” Elliott v. Bloyd, 40 Or. 326 (67 Pac. 202), was a suit to enjoin defendant from taking and removing timber from land belonging to plaintiff not included in' a contract between the parties, by which plaintiff sold to defendant certain described timber on such land. In that case, also, the jurisdiction of a court of equity was questioned; but it was held that under the settled rules of equitable jurisdiction the court would interfere to- restrain the threatened waste. This same principle was announced and applied by this court in other eases cited.

5. It is also contended that the court erred in permitting plaintiff to file an amended reply, after portions of the original reply had been stricken out on motion; but this was a matter resting within the sound discretion of the trial court, and its judgment thereon will not be disturbed on appeal, unless it appears there was an abuse of such discretion. Nor does the fact that plaintiff’s application to file such amended pleading was not supported by an affidavit showing why he should be permitted to do so. The court allowed his application, and before its ruling can be disturbed on appeal, it must affirmatively appear that it erroneously exercised its discretion. Where a court refuses to permit an amended pleading to be filed, its judgment likewise will not be disturbed, unless it appears from a supporting affidavit, or otherwise, that it was an abuse of discretion to deny such application: Garrison v. Goodale, 23 Or. 307 (31 Pac. 709).

6. It is also insisted that the reply as filed constituted a departure from the cause of suit set up in the complaint. The defendant justified its right to cut or remove the timber or wood in controversy under and by virtue of two certain contracts, which it claims to have with plaintiff, but which are not set out in the answer, except in legal effect. To meet this defense, plaintiff by his reply pleads the terms of these contracts for the purpose of showing that the timber or wood in question did not come within the provisions thereof. The reply, therefore, is not a departure from the complaint or a new assignment of a cause of suit. It would probably have been better pleading if plaintiff had referred to, and set out, these contracts in his complaint, and then averred that the wood and timber, which he says defendant is wrongfully and unlawfully taking and threatening to take from his land, did not come within the terms of the contract; but it was not absolutely essential for him to do so, nor did the making of such averments in the reply substantially change the cause of suit.

7. It is claimed that defendant’s motion to dismiss the suit, made at the close of plaintiffs testimony, should have been sustained, because the evidence shows that defendant was not. in fact, a trespasser, but had a right, under its contracts with plaintiff, to enter upon the property in controversy for the purpose of cutting and removing certain timber, and that it is liable, if at all, for waste in cutting timber to which it was not entitled under such contracts, and therefore the plaintiffs remedy should have been by suit to. restrain waste, and not to enjoin a trespass. Technically there is a difference between “waste” and “trespass.” “Waste” is some unauthorized act which goes to the injury or destruction of an estate committed by one in the rightful possession thereof, while “trespass” is the act of a mere intruder. But, as we have seen, there is no substantial distinction, so far as the remedy is concerned. The law gives for trespass, by which the substance of an estate is injured or destroyed, and which cannot be adequately compensated in damages, the remedies for waste (30 Am. & Eng. Enc. Law (2 ed.), 258), and therefore, while in a technical sense the appropriate remedy for the plaintiff, under the facts disclosed by the testimony, would have been a suit to restrain waste, rather than a suit to enjoin a trespass, the relief sought is substantially the same, and the technical form of the pleading could have worked no injury to the defendant'.

8. This brings us to the merits. So far as the controversy concerning the timber on section 31 is concerned, the result depends upon the construction of the word “saw timber,” as used in the contract between plaintiff and Palmer of June 28, 1902. The court below found that prior to Ju-ly 1, 1905, defendant had taken from such land all the timber fit for lumber, except that upon a strip" about 11 rods wide extending across the east end of the land, and in this view we concur, after a careful reading of the testimony. The evidence shows that the greater part of the land was “logged off” during the winter of 1902-03, and the remainder the following season; that all the timber suitable for milling purposes was taken, and defendant quit logging and removed its engines and logging appliances, and plaintiff took possession of the premises and began cutting cord wood thereon; that about the 1st of March, 1905, defendant, finding its lumber business unjDrofitable, shut down its mill and soon thereafter re-entered and began cutting cord wood from tops of trees left on the ground during its logging operations, and from “wind falls” and unsound timber rejected by the loggers; that up to the time of the commencement of this suit it had taken and remvoed about 700 cords, and was then engaged in removing wood at the rate of 40 or 50 cords a day. Defendant claims that it was entitled, under its contract with plaintiff, to take all the timber under nine inches in diameter, whether suitable for lumber or not. It is common learning that the construction to be .given to a contract or agreement must have reference to the time and circumstances under which it was made. When so construed, there can be no reasonable doubt as to the meaning of the word “saw timber” as used in the contract between plaintiff and Palmer. At the time the contract was made, no cord wood was being cut on the land or in the vicinity; nor was any such use of the timber contem-' plated by either of the parties. Palmer was the owner of a sawmill which he intended setting up on land adjoining or near to the tract in question. He was desirous of acquiring timber for use at his mill, and plaintiff was intending to sell him timber for that purpose. Neither party was contracting with any other end in view, and when they used the word “saw timber,” as qualifying or describing the character of timber sold and purchased, they necessarily intended it to limit the grantee’s right to timber suitable for being manufactured into, lumber or other mill product. And this is the construction put upon the contract by the grantee. After the timber suitable for milling purposes had been removed from the land, defendant ce'ased its operations and removed its logging appliances, and it was not until it shut down its mill that it made any claim or contention that it had a right to take any timber other than such as was suitable for milling purposes. Having thus unmistakably indicated by its conduct what it understood by the term “saw timber/’ it cannot now be heard to insist that another interpretation be placed upon these words: Kaul v. Wend, 203 Pa. 586 (53 Atl. 489); Dexter v. Lathrop, 136 Pa. 565 (20 Atl. 545).

9. Two questions arise in the consideration of the controversy over the timber on the remainder of the land described in the complaint: First,.whether the judgment in favor of defendant, in the action brought by it against plaintiff in the circuit court for Multnomah County, to recover the valúe of cord wood cut by him on the land, is a bar or an estoppel to this suit, and, if not, whether defendant is bound by the terms of the contract of December 34, 1903, between plaintiff and Morris, modifying the contract of July 31, 1903, as to limit the rights of the purchaser to timber 13 inches and upwards in diameter. A reference to the pleadings and findings in the former action is necessary to an intelligent understanding of the question involved in the plea of former adjudication. The complaint in such action, after averring the incorporation of the Boring Junction Lumber Company, alleges that on July 31, 1903, Palmer 'purchased of Roots all the timber on the land in question, and paid him therefor, and subsequently sold and transferred all his rights under such contract to the company, and it is, and during all times mentioned in the complaint has been, the owner of such timber; that on or about the 1st day of May. 1904, Roots, without its permission, went upon the land, cut and converted to his own use, about 40 cords of wood from timber then belonging to it, of the reasonable value of 50 cents a cord, and prayed judgment for that amount. The answer is a general denial of the allegations of the complaint, and the findings of fact are substantially a copy of such allegations, except as to the amount of wood cut and removed ‘by Roots.

The law is well settled that, when a fact has been once litigated in a court of competent jurisdiction, the judgment rendered thereon is, as, a plea, a bar, or, as evidence, .conclusive between the same parties upon the same matter directly in question in another action. But a judgment in one action is a bar or an estoppel in another action between the same parties upon a different claim or demand, only as to the point actually litigated and determined, and does not extend to questions which might have arisen and been litigated: La Follett v. Mitchell, 42 Or. 465 (69 Pac. 916: 95 Am. St. Rep. 780). Thus, in an action for rent under a building contract, the defendant pleaded a subsequent agreement changing the tenancy into one from year to 3rear, and its determination by notice to quit. The plaintiff replied that he had recovered judgment in a former action against defendant for rent under the same agreement, which had accrued after the alleged determination of the tenanc3r, and in which the defendant did not set up the defense pleaded in the second action. The replication was held bad on demurrer, and Mr. Justice Willis said: “It is quite right that a defendant should be estopped from setting up in the same action a defense which he might havt pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defense in a second action because he did not avail himself of the opportunity of setting it up in the first action”: Howlett v. Tarte, 10 C. B. N. S. 813. So, also, a judgment in favor of a county, in an action to recover on certain coupons attached to bonds issued by the county, does not estop the plaintiff in such action from showing, in an action on other coupons attached to the same bonds, that he acquired such coupons and bonds for value before maturity; that question not having been adjudicated in the former action: Cromwell v. County of Sac, 94 U. S. 351 (24 L. Ed. 195).

There is a difference between the effect of a judgment as a bar or estoppel in another action between the same parties upon a different claim or demand, and in a second action upon the same claim or demand. In the latter case, the judgment, if upon the merits, is an absolute bar, and conclusive not only as to every matter that was actually litigated, but also to every matter that might have been litigated. But in the former the judgment is a bar or estoppel only as to those matters that were directly in issue and determined. Now, applying these principles to the case at hand, its solution is not difficult. The case of the lumber company against Roots was upon a different claim or demand from the one now in suit. It was an action in the nature of trespass to recover damages for taking timber belonging to the company. As an inducement to its right to recover, the company alleged the purchase by Palmer from Roots of all the timber on certain described lands on July 21, 1902, the subsequent transfer by Palmer of his rights under the contract to defendant, the entry of Roots on such land, and the cutting and removal of 40 cords of wood by him from the timber belonging to the company. These averments were denied by Roots. The only issues, therefore, presented by the pleadings or tried by the court, were the validity of the contract of July 21, 1902, the assignment of such contract to defendant, its legal effect, and the amount of wood cut and removed by Roots. Upon these questions the judgment is conclusive, but there was no issue as to any subsequent modifications of the contract and no findings upon that question. Roots did not set up any such defense, and is not concluded by the judgment because he might have done so but did not. “It is not believed,” says Mr. Justice Field, in Cromwell v. Sac County, 94 U. S. 351 (24 L. Ed. 195), that there are any cases going to the extent that, because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause because it might have been determined in the first action.” The judgment in the former action was, therefore, in no way a bar to the present suit, since the point now made, that the contract of July 21, 1902, between Palmer and Roots, was subsequently so modified that the right of the grantee and his assignee to cut timber, was confined to that 12 inches and upwards in diameter.

10. The other question is one of fact. The defendant claims that it is not bound by the contract between Morris and Roots, of December 24, 1902, and at the time it acquired its rights to the timber in controversy, it had no knowledge of such contract or the terms thereof. But this • position is not supported by the testimony. Some time prior to December 24, 1902, Palmer assigned and transferred to Morris his mill property and all his rights under the contracts with Roots of June 28 and July 21, 1902, and on the day named, Morris and Roots entered into a written agreement, in which it was stipulated that Morris would pay Roots $20 an acre in lieu of the compensation mentioned in the contract of June 28th for the timber he was authorized to cut on the land in section 31, and that Roots “shall have the right to cut all the timber under 12 inches fn diameter on land described in said contract of July 21, 1902, as well as the land described in the contract dated June 28, 1902,” and the right to “enter upon any of the land described in said two agreements and cut the timber thereon authorized by him to be cut,” as soon as Morris shall have cut and removed the timber to which he is entitled. Four days later, Morris re-transferred the mill property to Palmer, together with the right to cut timber from the lands described in the two contracts referred to, “the said timber to be cut as authorized by said two agreements and as permitted by that contract or agreement” entered into by him and Roots of date, December 24, 1902, and Palmer agreed to pay Morris $1 per thousand as stumpage. Subsequently Palmer sold one-half interest in his business and the contracts in question to Linton, who agreed in writing to assume one-half of the contract existing between Palmer and Morris, and thereafter Linton and Palmer sold and transferred the mill property and contracts to the defendant, and it likewise stipulated and agreed in writing to assume and cany out such contracts. It thus appears that, at the time defendant acquired its rights to the timber in controversy, it was not only advised of' the contract between Morris and Palmer, modifying the' previous contracts, but expressly agreed to comply therewith,'and it must therefore necessarily have known the terms thereof. It is one of muniment to its title, and its rights are to be determined thereby. Decree Affirmed.

Decided 10 March, 1908. 94 Pac. 182.