72 Ark. 190 | Ark. | 1904
(after stating the facts). The contract in this case above referred to was made on behalf of the appellants, by W. H. Grider, who -vyas the agent for his wife, and acting for her within the scope of his agency. . The price agreed to be paid by’ the appellees for the timber sold and for the privileges granted them was $3,150. In addition to conveying the timber to the appellees, the contract also conveyed the right to select a mill site, ten acres, and to make tramroads, or float the timber over the lands, and it still further conveyed a right of way through adjacent lands, eight feet wide from the mill site to the Mississippi river for a tramroad, which tramroad was erected. This tram-road is shown to have been made by laying boards together on the ground and putting down wooden rails on the plank. Having used this for a time, it began to rot, and proved insufficient for the purposes of the appellant, without great trouble and expense, and he concluded to put down iron rails, and finally put down cross-ties, and so changed the tram to a railroad. The appellants contend that under the contract they are entitled to the iron used by the appellee Sims, in changing the wooden tramway to a railroad, with iron rails; that, according to the contract, the appellees had no right to remove the iron, but it belonged to the appellants at the expiration of eight years. But it appears from the evidence in the case that the appellant Grider had an understanding with the appellee Sims about the placing of iron On the road, in which Grider assented to the putting of the iron down, and encouraged the appellee to put it down, and that he afterwards regarded the iron as the property of Sims, and encouraged him to sell it, and others to buy it of him. The value of this iron is shown by the evidence to be $5,000 to $7,000. It would be inconceivable and unreasonable that appellants should be allowed to retain this iron, under the circumstances in proof. If they were allowed to do so, they would receive thereby double the value of the amount for which they sold the timber on the land, to haul • out which it was put down.
We think that, under the understanding and agreement between the appellee Sims and the appellant Grider, the said iron was the property of Sims, and that he had a perfect right to remove and dispose of it as he saw proper. The only controversy in the case is as to the appellee Sims’ title to and right to remove this iron.
Finding no error, the decree is affirmed.
