Jefferson Davis County v. Long ( 1909 )

Mayes, J.,

delivered the opinion of the court.

This suit was instituted by Jefferson Davis county, on the order of the board, of supervisors of the county, against Long and another, engaged in operating a turpentine still in Jefferson Davis county. The gist of the declaration is to the effect that on the 24th day of January, 1850, the proper authorities designated by law so to do, leased to one Lemuel Bullock for a period of ninety-nine years a certain tract of land therein described, being the sixteenth section school lands; that Lemuel Bullock made divers conveyances of the land in question to various persons, who in turn conveyed to others, a part of which lands were-finally purchased by Long and Ewing. The declaration then proceeds to state:

“That under and pursuant to said conveyance or conveyances or assignments to defendants herein, they (defendants) did, on or about the 17th day of September, 1904, and at various and sundry times since that date, enter upon said land, and did then and there box all the pine timber for turpentine purposes, and that, too, in utter disregard of their right so to do, and to the injury of the revisionary interest of plaintiff and the general public in and to said land and timber. That defendants have boxed and caused to be boxed for turpentine purposes all the pine timber standing or being on said above-described land, and have extracted, carried away, and sold for commercial purposes a large quantity of crude turpentine, to wit, one thousand, one ' hundred barrels of crude turpentine, and of the value of -$4:,400. That defendants did not box and turpentine said timber for the purpose of clearing said land for cultivation; but, on the contrary, they boxed said timber, and extracted the crude turpentine therefrom, and manufactured the same into spirits of turpentine and resin, and sold the same solely for speculative and commercial purposes, all of which acts and doings were and are acts of waste and injurious to the freehold, and to the damage of plaintiff in a great sum, to wit, $4,400. Wherefore plaintiff, by its said board of supervisors, brings this suit and demands judgment of the defendants for its said damages, to wit, $4,400, together with all costs in this behalf legally expended.”

To this declaration a demurrer was interposed, substantially setting up, first, that the county has no authority to maintain the suit; and, second, that the extracting of turpetine and resin from the trees did not, as a matter of law, constitute waste, when done by one owning a leasehold in sixteenth section school land. The demurrer was sustained, declaration dismissed, and from this judgment an appeal is prosecuted.

The question as to the county’s right to maintain a suit for waste committed on sixteenth section school land was practically decided in the case of Lumber Co. v. Harrison County, 89 Miss. 448, 42 South. 290, 873; but all doubt as to this was removed by the decision of this court in the case of Jefferson Davis County v. James-Sumrall Lumber Co., ante, 530, 49 South. 611. The question of the rights of lessees of sixteenth section school lands has been so recently under review by this court, and so fully discussed in the case of Lumber Co. v. Harrison County, 89 Miss. 448, 42 South. 290, 873, that we will not here repeat the discussion. Under the authority just cited, it was held that lessees of these lands cannot destroy the timber to the substantial injury of the inheritance, or make any other use of the timber not resulting in its destruction which substantially injured the estate of the reversioners. Where the declaration alleges that a lessee is committing waste, and its further allegations show that he is making a commercial use of the timber solely, surely no such declaration should fall before a demurrer which admits its allegations.

We cannot judicially know the effect of extracting turpentine from trees—that is to say, whether or not a substantial damage is the necessary or usual result; but we have held that any purely commercial use of the timber standing on the character of lands in question, resulting in damage, is unlawful. We have held in the Lumber Company Case supra, that in so far as this state is concerned “the usual purpose for which lands are leased are agricultural purposes, and, unless the contrary be stipulated in the lease, the lease carries with it only such rights as go with ordinary leases;” and, this being the law in this state, it is manifest that the appellees are making an unusual and unlawful use of the land in question—the only question being whether the injury complained of is of that substantial character as to constitute waste.

Reversed and remanded.