At the hearing, respondent's attorney admitted that the deed upon which this action is based falls within the rule of construction announced in the recent cases of Flagler v. A.C.L. Corporation andMcClary v. A.C.L. Corporation, and that, if the Court adhered to the decision in those cases, it would be conclusive of this appeal and warrant reversal of the judgment below. The Court was asked to review those cases, but declined to do so. Therefore, the judgment below was reversed. Counsel failed to bring to the attention of the Court, at that time the fact which is now brought to the Court's attention in this petition, to wit, that upon the record in this case, under the authority of the cases above cited, the plaintiff was entitled to have the preliminary injunction maintained, until the decision on the merits of the question, whether plaintiff had been allowed a reasonable time, within which its right must be exercised, to elapse before commencing to cut the timber in question. This, however, does not afford ground for a rehearing, but the Court will now make the judgment which it would have made then, if the matter had been brought to its attention.
Therefore, it is ordered that the former judgment of this Court be modified to this extent, that the judgment of the Circuit Court be reversed in so far as it made the preliminary injunction permanent, and that the preliminary injunction remain in force until the hearing. Further ordered, that the order staying the remittitur be revoked. *Page 366