I am unable to agree with my brethren that this judgment should be affirmed. The controlling question is one of abandonment. I shall not undertake to restate the facts disclosed by the record. For a full statement of all the facts, reference is made to the records on former appeals. See Smith v. Jasper County Lumber Co., Tex. Civ. App.46 S.W.2d 430; Id., 124 Tex. 156, 76 S.W.2d 505; Jasper County Lumber Co. v. Smith, Tex. Civ. App. 91 S.W.2d 834. Also majority opinion herein.
The time limit for the removal of the timber was 15 years. The timber was bought and paid for in 1922. Before the limit for removal had scarcely half expired, this litigation arose on the claim of appellees that the land had been cut over and abandoned and the timber then standing had reverted to them. Under the facts as to the cutting over, as ruled by Cammack v. R-L Lumber Co., Tex. Civ. App. 258 S.W. 488, writ refused, the land had not been cut over. The holding on that question in that case was not in any manner overruled or modified by the decision of Judge Ryan in the instant litigation. 124 Tex. 156, 76 S.W.2d 505. It is still the law.
The finding of the jury on this trial that appellant had not claimed the timber at all times since 1923 is without any support in the evidence.
The finding of the jury that it was not the intention of appellant, and its predecessor in title, at all times since 1923, to October, 1937, to cut and remove the timber, is so against the overwhelming weight and preponderance of the evidence as to be wrong, and should not be permitted to stand.
The finding of the jury that appellant had abandoned its claim to the timber is so against the overwhelming weight and preponderance of the evidence as to be wrong, as a matter of law, and should not be permitted to stand. The testimony on this issue will not here be set out, but reference for same is made to the reports of the case on former appeals cited above, and to the additional facts recited by the majority herein. Furthermore, it is my opinion that appellant's exception to the court's charge in submitting the issue of abandonment to the jury was well taken, and that the overruling of said exception was erroneous. The charge reads: "Do you find from a preponderance of the evidence that Jasper County Lumber Company has cut over and abandoned the land described in the pleadings in this case one time?"
In connection therewith and as a guide to the finding on the question of abandonment, the court charged: "By the term *Page 1194 `abandoned', as it is used in this charge, is meant voluntarily left the land after cutting over it generally, with the intention then not to cut any other timber that might be still standing upon the land, such intention to be determined by the acts of Jasper County Lumber Company and all other evidence before you."
This charge was objected to by appellant for the reason, among others, that it did not confine the jury in their deliberations "as to when said alleged abandonment occurred to the years from 1924-1930 inclusive, though the evidence and undisputed proof and the facts this court has judicial knowledge of show that such abandonment, if any, occurred from 1924 to the first of 1931, when this suit was filed." The evidence reflects that the last cutting of timber by appellant was about the first of the year, 1930. The cutting was not continuous, but intermittent. On about December 30, 1930, the Smiths entered upon the land and began cutting the timber, asserting title on the ground that the lumber company had cut over and abandoned the timber and that the remaining timber had reverted to them. Appellant, January 5, 1931, instituted this suit asserting its title to the timber. It will be observed that this litigation has continuously been in the courts. It is believed that the charge above complained of was erroneous because it did not limit the jury on the question of abandonment to considering the events happening from and after the last cutting of timber by appellant up to the institution of this suit. There was no limitation given the jury as to what they might consider in determining the question of abandonment, but they were told they might consider "the acts of Jasper County Lumber Company and all other evidence before you." This charge was given on August 7, 1936, nearly six years after the suit was begun. Appellant had not cut any timber or made any effort to do so in that time for the good reason that the timber was in litigation and it could not do so. Can it be safely concluded that the jury did not consider this very fact as going to show an abandonment by appellant. Is it not more than likely that the jury did consider this lack of cutting as supporting the claim of abandonment? As pointing to this very situation, it is believed that the argument of counsel for appellees shows that counsel so interpreted the charge. One of counsel in his argument to the jury said: "They have not cut anything in seven years, the law presumes a man dead in that time." This argument was objected to by counsel for appellant, for the reason, among others, that it "involved a time since the suit was filed." This objection was overruled by the court. This could have and very likely did impress the jury that the charge authorized them to consider this inactivity on the part of appellant in determining their answer to the issue. Again, another of counsel for appellees in his argument to the jury on this question said: "They quit for years and years. Do you think there was a time during this time when they didn't intend to quit"? Counsel for appellant objected to this argument for the reason as stated before, which was overruled. In view of these repeated statements to the jury showing this very thought in the charge, and the repeated rulings by the court, can it be said with any degree of certainty that the jury did not so consider the charge and, in the language of the charge, use it as "other evidence before you," in answering the issue? Certainly, the interval between the filing of the suit early in 1931 to the giving of the charge July, 1936, during all of which time the timber was in litigation, and appellant could not, as a matter of law, cut the timber, could not and should not have been considered by the jury. It is believed that the charge without limitation, as it was, on the feature discussed, was error and probably caused the jury to return a wrong answer to the issue.
For the reasons stated, I think the judgment should be reversed and here rendered for appellant, or at least reversed and remanded.
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