I am of opinion that the bill is without equity; that the demurrers thereto were properly sustained, and that the decree of the circuit court should be affirmed.
The bill is filed, not by the original grantee of Varner and wife — the Lathrop-Hatten Lumber Company — who under the grant of April 22, 1902, was given twenty-one years to remove the timber from the land, but by the grantee of said Lathrop-Hatten Lumber Company, to wit, Wisconsin-Alabama Lumber Company, who acquired its claim after the lapse of the twenty-one years.
The bill is filed more than twenty-six years after the said Lathrop-Hatten Lumber Company acquired its rights, and more than five years after its right to enter upon the land of Varner and wife, and those claiming under them had expired, and, so far as appears, the filing of the bill in this case is the first and only assertion of any claim or right under the alleged grant of Varner and wife to said Lathrop-Hatten Lumber Company by any one, or that any such right has been for more than a quarter of a century recognized by the original grantors or those claiming under them.
There is an absence of averments in the bill showing or tending to show any sort of excuse for the failure of the grantee in said deed — Lathrop-Hatten Lumber Company — to cut and remove the merchantable timber within the twenty-one years allowed by the grant, or that it has borne any of the burdens of taxation during such time.
The averment of the bill as amended is not that the complainant owns the timber that was merchantable on the 22d of April, 1902, but that "it now owns all the merchantable timber" on said land. When the complainant acquired or began to claim such right does not appear.
In the meantime — between the grant of Varner and wife to Lathrop-Hatten Lumber Company and the filing of the bill — the property, both land and timber, was conveyed to Mims and wife, and before the filing of the bill they conveyed the same to respondent by warranty deed.
The bill as amended avers: "That the source of title of J. B. Mims who granted same to the said Walter M. Sewell was W. A. Varner, the same source of title from which Your Orator's rights were acquired, and that the right and title of the said J. B. Mims was acquired from the said W. A. Varner after the recording of the conveyance marked Exhibit A hereto attached, and with constructive knowledge on the part of the said Mims of the right and title conveyed by said contract and deed shown as Exhibit A." But it is not averred when or where said conveyance was recorded, or that the respondent had any notice, actual or constructive, of complainant's rights. (Italics supplied.)
It further appears that, between the date of the original grant and the filing of the bill, the value of themerchantable timber on said tract has increased fivefold — from one hundred to five hundred dollars.
The Varner deed, under which the complainant claims, stipulates: "That the Lathrop-Hatten Lumber Company shall have and they are hereby granted until the 22nd day of April, 1923, within which to cut and remove from said lands the timber hereby conveyed to said grantee, and the Lathrop-Hatten Lumber Company shall have during said time full right of way over and across any part of said land for that purpose, and that theparty of the first part hereby agrees that during the time aforesaid they will not grant to any person, firm or corporation any right of way, on, over, across, through or upon said lands hereinbefore described or referred to for the purpose of building a tram road, railroad or pole road to remove timber." (Italics supplied.)
The relief sought is to enjoin and prevent the respondent from cutting and removing "any of said timber and the products thereof from said land, and for the appointment of a receiver to take possession of the property, both surface and timber, so as to adequately improve the surface rights of the respondent and at the same time preserve and protect the rights of your orator." (Italics supplied.)
In other words, the court is invited to go into the business of husbandry, clear the respondent's lands, and separate and segregate the timber that was merchantable more than a quarter of a century ago from that which was not then merchantable, but now is; market the same and turn the proceeds over to the complainant — an undertaking fraught with such uncertainty as to lead into a field, at best, of mere conjecture as to the timber that passed under the grant, and involves a process requiring personal supervision, extending over a considerable period of time which a court of equity should not undertake. Olive v. Fayette County, 219 Ala. 172, 121 So. 703; Bromberg v. Eugenotto Construction Co. et al., 158 Ala. 323, 48 So. 60, 19 L.R.A. (N.S.) 1175.
To sustain the equity of this bill some of the fundamental principles of equity jurisprudence must be either uprooted or wholly ignored.
In the first place, the complainant is a volunteer. It purchased long after the time *Page 701 stipulated for the removal of the timber had expired, in the face of the decisions of this court that the owner of the timber could not maintain the equitable action of trover for the conversion of the timber. Long v. Nadawah Lumber Co.,202 Ala. 523, 81 So. 25; that the owner of the land could not maintain ejectment, Ward v. Moore, 180 Ala. 403, 61 So. 303; that he cannot cut and remove it from the land without becoming a trespasser, Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380,42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58; that a court of equity will not authorize such purchaser, after the stipulated time for removal, to enter and remove it "since thepowers and processes of a court of chancery cannot be employedto sanction a legal wrong," Mt. Vernon Lumber Co. v. Shepard,180 Ala. 148, 60 So. 825; that the owner of the timber had no right to invoke the jurisdiction and powers of a court of equity to have the property sold for division in order to sever his interest. Shepard v. Mt. Vernon Lumber Co., 192 Ala. 322,68 So. 880, 15 A.L.R. 23. (Italics supplied.)
Therefore the right acquired by the complainant when it purchased was nothing more than a shadow, the substance having disappeared through the negligence and inactivity of its predecessor in title, and by the lapse of twenty-one years allowed for removal of the timber.
The observation of the court in Mt. Vernon Lumber Co. v. Shepard, 180 Ala. 148, 155, 60 So. 825, 828, is not only pertinent, but conclusive against the equity of the bill. It was there said: "The bill in this instance would invoke aid of a court of equity to enable it (appellant) to enter upon the lands of the grantors, and to remove the timber to which it has the legal title. * * * As appears, the five years within which under the instrument of conveyance appellant was required to remove its timber expired before this bill was filed. To now, under any sanction, enter for the removal thereof, would be a trespass — a wrong. Equity's process and powers cannot be so employed." 180 Ala. 155, 156, 60 So. 825.
That was a bill filed by the original purchaser, while here the bill is filed by a purchaser after the expiration of the time for removal, who took mere gambler's chance, and is now invoking the powers and processes of a court of equity to enforce and collect the winnings.
Another principle opposed to the equity of the bill is: "Nothing can call forth into activity a court of equity but conscience, good faith, and reasonable diligence. When these are wanting, the court is passive, and does nothing. This maxim not only covers generally the subject of laches, * * * but it has also been employed very broadly to deny relief generally tothose who neglect to take care of themselves, and who therebysuffer losses which ordinary care would have prevented." (Italics supplied.) 10 Rawle C. L. 388, § 138; Gayle v. Pennington, 185 Ala. 53, 64 So. 572; 21 C. J. 225-232; Roberts v. Hughes, 81 Ill. 130, 25 Am. Rep. 270; Bibber v. Carville,101 Me. 59, 63 A. 303, 115 Am. St. Rep. 303.
And the principle is especially applicable where the rights of third parties have been permitted to intervene to such extent as to be materially affected if the negligent party should prevail. Graham v. Boston, etc., R. Co., 118 U.S. 161,6 S. Ct. 1009, 30 L. Ed. 196; Snyder v. Charleston S. Bridge Co., 65 W. Va. 1, 63 S.E. 616, 131 Am. St. Rep. 947.
And, likewise, if the property involved is of a fluctuating character, or speculative in value, more than ordinary diligence and promptness is required. Gilmer v. Morris, 80 Ala. 78, 60 Am. Rep. 85; 21 C. J. 225.
The complainant took the property burdened with the result of the gross negligence of his predecessor, and is clearly not entitled to equitable relief.
I therefore respectfully dissent.
GARDNER and THOMAS, JJ., concur in the foregoing dissent. *Page 702