Dickinson v. Jones

Threatened waste or destruction of timber land, by sawing up the timber or deadening timber land preparatory to opening it for cultivation, or cutting the wood for firewood and sale, by any life-tenant or person claiming through such an one, will be promptly and efficiently restrained by a Court of Equity upon application by any remainderman. (The Chancellor is ordered to grant the injunction.)

Rule nisi for injunction. Decided by Judge Vason, Chambers, April, 1867. Dougherty County, Georgia. John T. Dickinson, for himself, and in right of his wife, Julia, and his children, Henry G. Eogers and John T. Dickinson, Jr.; and ’William Q,. Dickinson, for himself and his wife, Cornelia, and as trustee for the wife and children of Bichard A. Dickinson, deceased, to wit: Archibald and Zelima Bell Dickinson, averred that the aforesaid are the children and grand-children of Eoger Q. Dickinson, late of said county, deceased, and as such are entitled to an estate in remainder, in a certain plantation 'in the 1st District of said county, described in the third item of the will hereinafter set forth, containing 1,500 acres, more or less, which was devised by said Eoger Q,. Dickinson, by his last will and testament, to his wife, Catharine. In support of this averment they attached as an exhibit to said bill a copy of said will, the items of which are as follows: Item 1st. I desire that my executors, as soon after my death as possible, from the sales of crops and other means I may have, shall pay all my just debts. Item 2h. I have heretofore advanced to each of my sons John T. and Eichard A., in lands, negroes, stock, &o., amounting to the sum of $8,000.00 each, which said property I hereby convey to them in fee; for the purpose of making my wife, Catharine, and my son William Q,. equal with my said sons, I do hereby give to my wife, Catharine T. (in lieu of her dower interest,) to be held by her in fee forever, the following property: (here follows the names and ages of four slaves;) also, three choice mules, ten head cattle, twenty head of stock hogs, provisions for negroes and stock for one year, and my carriage and match-horses; which property I estimate to be worth $8,000.00. The balance of this item is a bequest to 'William. Q,. of slaves and other personalty to the same amount. Item 3i>. I wish my plantation lying east of Flint River, in the First District of Dougherty, to be divided into two parcels, by a line as follows: beginning at the south-west corner of lot number 193 and the south-east corner of 199, thence north on the line to the Flint River, all the land lying west of that I do hereby give to my wife, Catharine, during her life, with remainder over to my children, as hereafter provided : the eastern portion of said plantation I do hereby give to my son William Q,., to be held by him as hereinafter stated. Item 4th gives to his son John T. certain lands therein described, to be held by him “ as hereinafter provided.” Item 5th gives to his son Richard A. certain lands (describing them) in fee, and certain other lands (describing them) to beheld and enjoyed by him “ as hereinafter provided.” Item 6th. “The whole of the balance of my estate, both real and personal, I Avish to be equally divided between my Avife, my sons, John T., Richard A., and William Q,., share and share alike, that part of share to which my wife may be entitled, as Avell as the lands hereinafter devised to her, to be enjoyed by her during her life, with remainder over to my children.” The remaining parts of this item directed that the property given to said John T. and William Q,. (except that given in fee) shall be held in trust by each of them for his and his Avife’s support, and for the support and education of their respective children, not to be subject to the husband’s or Avife’s liabilities or contracts, and at their respective deaths to vest in their children; and the executors shall hold Richard A.’s (except that given him in fee) upon the same terms, with power in the executors to deliver the same to Eichard A. when they are satisfied that he is steady and provident. Item 7th. Should either of my boys die without leaving children or wife him surviving, the whole of the property herein conveyed, except such as is given them in fee, shall be divided equally between my surviving 'children. Should either of them leave a wife and no children, then the wife to have a lifetime estate in the same, with remainder over as herein before stated. The balance of the will directs the lands to remain undivided till the crop shall be gathered; gives the executor power to sell at public or private sale, on such time as they think best for the estate, and appoints said Catharine, said John T., and David A. Vason, executors. [It was made 29th April, 1858, and probated 14th June, 1858.] They averred that said Catharine took possession of said plantation under and by virtue of said will, and married John Thornton, who took possession of it by virtue of said marriage; that when testator died, and when Thornton so took possession, said lands were used as a plantation for farming purposes, and were so desired [designed]; but since that time, said Thornton has [injured] and is injuring and damaging the said plantation, by cutting and selling off said lands the most valuable timber upon the same; to wit, large quantities of ash and hickory from the river lands, to the permanent injury of said plantation, which is not necessary, to the enjoyment of the plantation for farming purposes; that Thornton has contracted to said Jones the privilege of using the timber on the woodlands belonging to said plantation, for the purpose of being sawed up into lumber; and said Jones is preparing to erect a steam saw mill on or near said lands, for the purpose of sawing up said timber. Timber is becoming scarce in the neighborhood of said plantation, and if these things are persisted in said remainder estate will become of little value. They further averred that there is an abundance of open land on said plantation for the full and free enjoyment of said life estate; but Thornton and Jones are having a large quantity of timber deadened, merely as a pretext to cut the same into lumber; that this is pine timber, which, for rails and other farming purposes, is very valuable many years after it is dead. Many of the remaindermen are mere children, and this remainder estate is almost all they have, and said defendants are not able to pay damages. Without restricting the proper use of said life estate, they prayed an injunction against the acts of waste aforesaid. The Chancellor granted an injunction to last until the hearing, and ordered the defendants to show cause why he should not extend it. ■ Thornton and Jones each answered the bill, and admitted all the charges in the same, except as follows: Thornton says that in right of his wife, the life-tenant, he is entitled to all the enjoyment of said life estate in as full and ample a manner, for that term, as though a tenant in fee; and in exercise of that right he sold and conveyed to said Jones his entire interest in one of those lots ; that he is not bound to use the property as a plantation only, but in any way he sees proper, so that he does not ruin or destroy the freehold. He denies that he is injuring or damaging the plantation ; says he has cut and sold a small quantity of the ash and hickory off some of the swamp lands not susceptible of cultivation, leaving enough timber on the land to furnish all the plantation will need till the lands will be worn out. He denies that there is sufficient open land on the plantation, stating that testator gave his wife fifteen or twenty able hands; that the cleared lands were not sufficient for this force, and some of it was worn out, and he had a right to clear more; and that this clearing will not injure, but will benefit the remaindermen’s estate by $2,000.00. He states that after the sap has rotted from deadened pines, they are sometimes used for rails, when green timber cannot be had; but that there will be sufficient green timber on this plantation till it is worn out and worthless; that Jones is intending to saw up only the timber already dead and decaying on the la,nd, and unsuitable for rails; and that he (Thornton) intends clearing no more, as he now has sufficient cleared. He says nothing as to insolvency. Jones’ answer is the same, with these variations: He says the deadening of the timber was only for purposes of cultivation ; that he has only deadened part of one lot of the land, about one hundred and sixty acres, leaving between eighty and one hundred acres, which is sufficient for fencing the same hereafter ; and that this clearing will increase the value of the remainder estate by $500.00; and that he 'is amply able to respond in damages. Both deny all fraud and malajides. At the hearing, several witnesses were examined orally, and their evidence put in writing afterward by consent. Said Jones introduced by complainant testified that he did not purchase said lot, for the purpose of erecting a saw mill; but a short time after he bought the life estate in the same he did propose to contract with one Fletcher, who owned a steam saw mill, situate in Albany, to remove it and put it in operation on said lot, and he intended sawing all timber on the lot suitable for sawing; that this timber was well suited for sawing; that he thought he had a right to do so; and that there was plenty of timber for the plantation, besides that on his lot. E. C. Helmes testified for complainants that if the said Jones’ lot was wholly cleared, it would benefit the life estate and injure the remainder; that if he owned Dickinson’s plantation, he would prefer the timber should be deadened' and left standing rather than have it cut off; that this dead timber made the best of rails; that there was about three hundred acres of the river lands, and about five or six hundred acres of pine lands, and about seven hundred acres of cleared lands; that there was but little timber on the river lands suitable for rails ; that the oaks on the river were generally good for rails, but that gum, ash, and other kinds of trees, (of which there were a great many,) were unfit for rails; that the pine lands were well timbered, and contained more rail-timber to the acre than the river lands; that the open lands had but little rail-timber on them, and the fences were in bad order. I. Jackson testified for complainants that he owns the adjoining plantation to said Dickinson plantation, and is familiar with it; that there are about five hundred acres of wood fit for rail timber; that the wood on the river is unsuitable for rails; that the Jones lot is embraced in that part which is fit for rail timber; that on the old, or open lands, there is no timber of consequence fit for rails, and the fences are bad and need repairing. Cutting off the timber from the Jones lot would very greatly damage the remainder estate, and much greater than by only deadening the timber and leaving it standing; that much of it would stand for twenty years, and being heart-pine, would make best of rails; that in twenty years timber in that section will be of great consideration ; that cutting it all off of said lot would injure it ten dollars per acre; that one half of the plantation is now cleared, and has but little rail-timber on it. Defendant read the affidavit of E. C. Plelmes, J. W. Reynolds, and J. M. Thornton, (complainant,) to the effect that they knew the Jones lot; there was an abundance of timber or uncleared land on said estate, being about seven hundred acres cleared and nine hundred uncleared; and if the whole Jones lot is cleared and the timber deadened and left on it, the value of the estate will be greatly enhanced, and if it is all taken off of said Jones lot the estate will be still more enhanced, because there is abundance of timber still left; the cleared land near Albany rents high, and even pays good profits on investments, and clearing this J ones lot will enhance the value, by saving expense of clearing every spring, and by saving damage to crops by falling timbers. Jno. R. Hill, by affidavit, stated that he was well acquainted with the plantation aforesaid, and with the Jones lot; that in his opinion there will be sufficient timber on the same, (exclusive of the Jones lot,) together with wrhat will be left on the Jones lot after cutting what is suitable for sawing, to fence the place for a number of years; that if Jones clears the wood land and fences it well, the clearing will be worth for agricultural purposes fully as much as the timber for sawing would bring at present market prices; that if, after fencing the same, Jones should cut off all the timber, it would enhance the value of the remainder estate, by saving time in removing falling timber from year to year; and that when cleared said Jones lot will be worth more than it now is. Upon this the Chancellor refused the injunction, and for this error is assigned.