81 Ark. 115 | Ark. | 1906
“On the last day of November, 1901, Wilson & Beall, a firm composed of R. E. Lee Wilson and S. A. Beall, sold and by warranty deed of that date conveyed to appellant the southwest quarter of section 13 and the southeast quarter of the northwest quarter of section 13, township 12 north, and range 9 east in Mississippi County, Arkansas, which deed contained the following clause: “Wilson & Beall reserve all merchantable timber on said land same to be removed within two years from date.” On the 27th day of November, 1903, appellant instituted this suit in the chancery court of Mississippi County, alleging that appellee Wilson and his employees, John Merrill and J. H. Page, made codefendants, had entered upon the land and were cutting and removing timber therefrom, to the irreparable damage and injury of appellant, praying an injunction to restrain appellee and codefendants from cutting and removing the timber from the land.”
The defendants, appellees, answered and admitted the execution of the deed to appellant, and Wilson claimed the merchantable timber on the land conveyed under the reservation therein.
The depositions of witnesses were taken, and the cause was submitted at the October, 1905, term of court. The court found that the title to the merchantable timber on the land was never conveyed and did not pass to plaintiff, the appellant, and that the defendant-appellee, Wilson, is the owner of it, and rendered decree in favor of the defendants, dismissing the complaint for want of equity.
Neither the complaint nor the evidence in this case show that the plaintiff was entitled to relief by injunction. What is said in Myers v. Hawkins, 67 Ark. 413, is applicable and appropriate in this case; .and nothing more, in addition, need be said in this suit. See also Western Tie & Timber Co. v. Newport Land Co., 75 Ark. 286.
The decree of the chancery court is modified so as to dismiss the complaint for want of equity, without prejudice to plaintiff’s right to bring an action at law for damages, or for the recovery of timber or both.