Gray Lumber Co. v. Gaskin , 122 Ga. 342 ( 1905 )

Cobb, J.

1. We will first dispose of the motion to dismiss the writ of error sued out by the plaintiff.- While his bill of exceptions was styled by him a cross-bill, the assignment of error therein contained is one which is appropriate only to a main bill of exceptions, and therefore the writ of error should have been sued out within twenty days after the rendition of the decision complained of. Sumner v. Sumner, 121 Ga. 1 (2). It does not affirmatively appear from the bill of exceptions that it was ten-, dered within twenty days after the decision complained of. The bill of exceptions recites that it was tendered within thirty days from the time the bill of exceptions of the Gray Lumber Company was certified. This may or may not have been within twenty days after the decision of which complaint is made; and as it does not affirmatively appear that the bill of exceptions was tendered in due time, the writ of error must be dismissed. Evans v. State, 102 Ga. 763; McDaniel v. Allison, 115 Ga. 751; Atkins v. Winter, 121 Ga. 75.

2. The Gray Lumber Company’s bill of exceptions recites that it was tendered within twenty days from the date of the decision complained of, and it was certified within that time. There is therefore no merit in the motion to dismiss the writ of error on the ground that the bill of exceptions was not tendered within due time.

It remains now to dispose of that ground of the motion to dismiss which alleges that this was the second bill of exceptions signed by the judge in this case. When the judge has signed a bill of exceptions in a case, he has exhausted his statutory power with reference thereto so far as concerns the party tendering the bill of exceptions; he can not subsequently certify another bill of exceptions at the instance of that party. Perry v. Central Railroad, 74 Ga. 411, and cit. In that case the fact that the judge had signed two bills of exceptions appeared in a certificate to the bill of exceptions' which was transmitted to this court, and therefore that fact was properly before this court and could be made the foundation of a judgment dismissing the writ of error. In the present case the fact that the judge signed two bills of exceptions is brought to the attention of the court by an averment in the bill of exceptions sued out by the plaintiff, the writ of error upon which has been dismissed; and therefore there is nothing before the court to show that a prior bill of exceptions was certified. But even if the plaintiff’s bill of exceptions were properly, before us, we do not see how we could act upon the fact thus brought to our knowledge. The averments therein are nothing more than a mere certificate by the judge of the facts, signed after the other bill of exceptions had been regularly certified. . If such certificate had been presented to this court independently of the bill of exceptions, it certainly could not have been considered. See Woolf v. State, 104 Ga. 536. If a supplemental certificate to the same bill of exceptions could not be considered, it would follow that the fact that a former bill of exceptions had been certified could not be brought before the court by another bill of exceptions, sued out by the opposite party, and verified by a certificate of the judge in which there was no assignment of error on the action of the judge, in signing the second bill of exceptions. If counsel for the defendant in error had appeared before the judge and objected to the certification of the second bill of exceptions, and invoked a direct- ruling from the judge as to his power to do so, it may be that such a ruling might have been brought before this court by an independent writ of error. See Peeples v. Cavender, 117 Ga. 948. The motion to dismiss the defendant’s writ of error will be denied.

3. The lease to Timmons, McWhite & Company conveyed the right to cut “ the timber suitable for turpentine and sawmill purposes.” If this clause stood alone, it might with much force be contended that timber- suitable either for sawmill or turpentine purposes could be used. But when read in connection with the entire lease, it becomes apparent that the parties had in mind only such timber as was suitable for both of these purposes. The clause of the lease providing that the defendant was “to have and use said described timber for turpentine purposes as aforesaid ” and “ to cut and use said timber for sawmill purposes as aforesaid” seems to make this clear. The expression “said described timber” evidently refers to “the timber suitable for turpentine and sawmill purposes.” This, then, "was the timber which was to be used for turpentine purposes. The phrase “said timber,” in the latter part of the habendum clause, clearly refers to the “ said described timber for turpentine purposes.” So that, when the whole lease is considered, the intention of the parties appears to have been that the timber embraced in the lease was timber which could be used for both turpentine and sawmill purposes; and it seems to have been contemplated that the timber would be first boxed for turpentine and afterwards sawed into lumber, though of course the defendant was not absolutely required to box the trees before sawing them. But it could not saw into lumber any tree which could not be boxed for turpentine. The court will take judicial notice of the fact that turpentine can not be extracted from cypress trees; and hence the leasé conveyed no right to cut cypress trees on the lands described therein.

4. The lease from Avery to Gray and Gatchell conveyed the “ timber suitable for sawmill purposes, that will measure 14 inches at stump and up.” There is nothing in this lease to indicate that the timber referred to must also have been suitable for turpentine purposes. The judge evidently construed this lease to include only pine timber; but, in our opinion, such a restricted meaning is too narrow. Words are to be given their usual and ordinary meaning. “ Timber suitable for sawmill purposes ” means any timber which is ordinarily used for manufacture into lumber. This would include cypress, or oak, or any other variety of timber which was suited for such use. There is nothing in the lease to indicate that only pine timber was meant, and there is no evidence that by the custom of the trade the language used has such a restricted meaning. Even if the terms were ambiguous, they would be construed most strongly against the party executing the lease and those claiming under him.

5. Nor can it be said that the defendant was not authorized to hew the timber into cross-ties. The sale of the timber suitable for sawmill purposes carried with it the right to use such timber for any purpose for which the purchaser saw fit to use it. If the timber was in fact “ suitable for sawmill purposes,” the purchaser could use it for cross-ties, or firewood, or for any other purpose which he saw proper. See, in this connection, Perkins v. Morgan, 91 Ga. 570, 572. The lease from Avery to Gray and Gatchell and the lease from the plaintiff to the defendant conveyed such of the cypress timber as was “ suitable for sawmill purposes.”

6. There was no allegation that the defendant was insolvent. Nor do the facts alleged or proved show that the damage would have been irreparable. The case is not within the rule laid down in Camp v. Dixon, 112 Ga. 872. There is, up to this time, no case decided by this court in which it was held that the simple-cutting of timber trees was irreparable in damages. Such trees have a commercial value, which can he readily ascertained when the quantity of timber cut is known. The plaintiff alleges that the quantity of timber which the defendant might cut could not he readily ascertained, but this does not show that the damage would be irreparable. Inability to correctly estimate the damage after all evidence obtainable has been produced makes a case of irreparable damages, but difficulty in collecting evidence as to damage would not'. “ A trespass is irreparable when, from its nature, it is impossible for a court of law to make full and complete reparation in damages.” Justices v. P. R. Co., 11 Ga. 250.

7. Did the plaintiff prove any facts which entitled him to an injunction? Prior to the passage of the “timber cutter’s act,” now contained in the Civil Code, § 4927, the rule was that “Equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary, among which shall be the avoidance of circuity and multiplicity of actions.” Civil Code, § 4916. The Civil Code, § 4927, as amended by the act of 1899 (Acts 1899, p. 39), enlarged the office of the writ of injunction, so as to embrace cases where the cutting of timber was involved, by providing that such a trespass might be enjoined where the plaintiff has “perfect title” to the land on which the timber is situated, or to the timber, without reference to the character of the damages or the solvency of the defendant. This sec•tion was intended to enlarge, and not restrict, the office of thé writ; and while it does not state in terms that the cutting of timber may be enjoined when “there exist other circumstances which, in the discretion of the court, render the interposition of the writ necessary,” the section was not designed to prevent the issuance of the writ in such cases. See Smith v. Smith, 105 Ga. 106, 108; Wiggins v. Middleton, 117 Ga. 162; Wells v. Rountree, 117 Ga. 839. So that au injunction may in this State issue •to restrain the cutting of timber, where (1) the defendant is insolvent; (2) the damages would be irreparable; (3) the plaintiff has “perfect title” to the land or to the timber; and (4) where there exist “ other circumstances ” which, in the court’s discretion, render necessary the issuance of the writ. In the present case it was not shown that the defendant was insolvent, or that the damages would be irreparable, or that the plaintiff had “perfect title; ” and hence the injunction, if warranted at all, must be •justified under the last of the grounds above stated.

8. What are these “ other circumstances ”? The code enumerates one, viz., “the avoidance of circuity and multiplicity of actions.” Civil Code, § 4916. Another is non-residence of a defendant who has no property in this State. Morgan v. Baxter, 113 Ga. 148. In Camp v. Dixon, 112 Ga. 872, the refusal of an injunction to restrain the cutting and removal of timber was reversed on the ground that, under the special facts of that case, the plaintiff having built sawmills and made large investments, the damages would have been irreparable. The court did not in that case go to the extent of holding that the mere cutting of timber, without more, was such a trespass as would be enjoined, though it was said that the trend of modern decisions seemed to be in that direction, and some authorities are cited to that effect. It is well settled that the frequency of trespasses is a ground for equitable interference. Thus in Pomeroy’s Equity Jurisprudence, § 1357, it is said: “If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar actions.” The rule is stated by Mr. Bispham as follows: “ The frequency of the acts of trespass constitutes another ground for the jurisdiction. The common-law action for damages furnished an adequate redress for a single trespass, or even for several, where there are no circumstances to indicate that the unlawful acts are to be repeated continuously; but where these acts of trespass are constantly recurring, and threaten to continue, it is settled that they may be repressed in equity by injunction.” Bisp. Prin: Eq. (6 th ed.) 560. In Georgia this rule has been applied to nuisances. In Ga. Chem. Co. v. Colguitt, 72 Ga. 172, it was held: “If a public nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action; and as an action may be brought for every day the nuisance continues, equity, which abhors a multiplicity of suits, will entertain jurisdiction, so as to do full and complete justice between the parties and terminate the litigation.” In Kavanagh v. Railroad Company, 78 Ga. 271, 273, it was said: “And it appears to us, from the allegations in this bill and the proof submitted, that the grievance is constant and continuous. The plaintiff in error would have a suit continuously at stated times for her continuing damage, and thus a multiplicity of suits would arise; and this, if nothing else, would call for the interference of a court of equity.” These decisions were approved in Hill v. Fertilizer Co., 112 Ga. 788, 791.

.No sound reason occurs to us why this rule should not be applicable to cases of trespass in cutting timber. Indeed, it was held in Griffin v. Sketoe, 30 Ga. 300, that “ Injunction is a proper remedy to stay waste in cutting down and selling from the lot the valuable timber thereof.” In the present case the defendant had been for some time cutting the timber. It stood squarely upon a supposed right to do so. It threatened to continue to cut the timber from day to day until lawfully prevented from so doing. An action at law for damages would have been a complete remedy for the injury sustained prior to the suit, but it would not have prevented further trespasses. Ought the plaintiff to be harassed and annoyed by being required to bring a new suit every day as long as the trespasses continued, when the whole controversy could be settled in one suit ? As has been shown above, the code expressly authorizes the judge, in his discretion, to grant an injunction to restrain a trespass in any case where under equitable principles tbe writ should issue, and enumerates as among such cases the prevention of a multiplicity of suits. Whenever it is shown that there are a number of suits, without reference to parties or the subject-matter, a multiplicity of suits would be shown, if that phrase be used in its generic sense. But it is certainly not used in such a broad sense in the section of the code. The phrase has been used to describe that character of cases which would'be within the jurisdiction of a court of equity under the doctrine of quia timet, and usually styled bills of peace. See Bisp. Prin. Eq. (6th ed.) § 415. But to apply the expression simply to this class of cases and no others would be giving to it a meaning as much too narrow as the meaning first above alluded to would be too broad. It is true that in Hatcher v. Hampton, 7 Ga. 49, Judge Lumpkin seems to have given the phrase multiplicity of suits this restricted meaning, hut an examination of that case will disclose that nothing said by the learned judge on that subject was authoritative. The trespass complained of had been enjoined by the circuit judge, but he had refused to enjoin the alleged trespasser from cultivating land which had already been cleared, and the case came to this court upon an assignment of error upon the refusal to grant the injunction as to the latter point. The judgment of the. court below was affirmed, and Judge Lumpkin takes occasion to remark that, in his opinion, the judge should have dissolved the injunction in toto. The question as to cutting timber had been decided by the circuit judge in favor of the plaintiff, and this judgment was unexcepted to and was not before this court in any way. In tbe cases above referred to, where the injunction was granted to restrain a continuing nuisance, the grant of the injunction was placed distinctly upon the ground that it would prevent a multiplicity of suits, thus showing that this court at that time construed the phrase in a .much broader sense than that indicated by Judge Lumpkin. But whether it be described as a multiplicity of suits, or in any other way, we see no reason why, under modern authority, a court of equity can not by injunction restrain a continuing trespass until the question of title can be decided at the final hearing.

It follows from what has been said, that the judge properly granted an injunction as to the cutting of cypress timber upon the land described in the Timmons lease, but that he erred in enjoining the cutting of cypress timber upon tbe land described in the other leases.

Judgment, on bill of exceptions sued out by the Gray Lumber Go., affirmed in part, and in part reversed ; the other hill of exceptions dismissed.

All the Justices concur.