Day v. Louisville, New Orleans & Texas Railway Co. ( 1891 )

Cooper, J.,

delivered the opinion of the court.

It is unnecessary, in the determination of this case, to decide whether the common law rule which limits the right of entry upon breach of a condition subsequent to the grantor and his heirs at law prevails in this state, or whether such right may be assigned to a subsequent grantee. It is sufficient to say, that, on the facts of this case, neither David Day nor Johnathan J. Day should be permitted to controvert the title conveyed by the deed of 1882. Whatever might have been the result of the action of ejectment at law, it is certain, that, in equity, the possession of the appellee should be protected, and the decree of the court below perpetually enjoining the prosecution of the ejectment suit must be affirmed.

But neither the averments of the bill nor the evidence warrant the injunction against the action of trespass to the timber cut by the servants of the company upon the land adjoining the right of way.

The extent of the right secured to complainant b.y the deed of 1882 was of a right of way of one hundred feet, “ and to fell any timber beyond the right of way herein granted which is sufficiently near the track of said road to fall on or obstruct the same.”

Complainant does not aver that the suit for cutting trees is brought for the purpose of recovering for,trees which, under the clause of the conveyance above quoted, it might lawfully have felled. The averment of the bill is that said suit is “ for trespass in going outside of the right of way, and felling timber or trees in section 20,” etc. Dpon the familiar rule that the pleadings in a cause are to be construed against the pleader, or, in other words, that it must be assumed that he has stated his ground of action or defense as strongly as he may, this averment, if proved, would not constitute a defense to the suit. If the averment had been that the action of trespass was for cutting trees “ sufficiently near the track of said road as to fall on or obstruct the same,” and the evidence had supported the allegation, the decree of the court in this respect would have been correct. But the right to cut such trees along and outside of the right of way as might be near enough to fall upon the track, did not carry the right “to cut trees on section 20, outside of the right of way” generally; and, for aught that is stated in the bill of complaint, none of the trees cut were so near the track as to “ fall upon or obstruct it.”

So much of the decree as perpetuates the injunction against-the prosecution of the action for cutting timber and trees must be ' Reversed.