PAINT CREEK CO. et al. v. GALLEGO COAL & LAND CO. et al., 166 F. 62

WADDIEL, District Judge (after stating the facts as above). The appellants, G. C. Eewis and the Paint Creek Supply Company, by demurrer and plea raise the question of the jurisdiction of the court, in that they charge the suit was a collusive one between the appellees, the complainants, and the defendant the J. W.

Malian Lumber Company, and that the interests of the latter company are identical with those of appellees, and said company should have been joined with the appellees, the complainants, instead of the appellants, the defendants, and, if so joined, would defeat the jurisdiction of the federal court, said company being a citizen of the state of West Virginia, and therefore not a citizen of the same state as the appellees, the other complainants. Upon considering this question, and the demurrer of the J. W.

Mahan Lumber Company to the bill, the lower court sustained the last-named demurrer, and dismissed the bill as to the said lumber company, which is assigned as error by the appellants. In pressing this assignment of error, sight is apparently lost of the difference between persons who may be proper, and those it is necessary to make, parties. A careful consideration of the pleadings would seem to make it clear at least that the J. W. Mahan Lumber Company is not a necessary part}1, in order to adjudicate the actual merits of this controversy.

It is seeking no relief at the hands of the court, either as plaintiff or defendant, and the ap-pellees, the complainants, asked no relief against them, and their presence could hence clearly be dispensed with without prejudice to the rights of any one. As to the suggestion that the suit is a collusive one between the Ma-han Company, and appellees, the complainants, it suffices to say that there is nothing in the record to sustain that contention, and the appellants have not sought to establish the same.

Plliminating the technical questions arising upon the record, and in which there seem to be no merit, the case turns upon the true

interpretation and meaning to be given to the timber contract with the J. W. Mahan Lumber Company, and under which it was operating upon the appellees’ premises. The appellants, the Paint Creek Supply Company and G. C. Lewis, can have as against the appellees no other or greater rights than the J. W. Mahan Lumber Company acquired under their contract with the then owners of the property. Hence, it will be unnecessary to deal especially with the undertakings either between the lumber company and Lewis, or between Lewis and the Paint Creek Supply Company.

In the language of the contract with the Mahan Lumber Co., hereinbefore recited, it is clear that no lease of the property, or transfer or sale of property, or of any interest therein, other than the right to cut timber, and the privileges incident to the exercise of such right, was contemplated. It was, in other words, a simple timber contract, whereby it was agreed to sell all of the timber, except the walnut, of certain dimensions on a certain portion of an area of land, at a fixed remuneration.

The fact that provision was made for the necessary rights of way over the land, and the use of sufficient surface for mill sites, houses, etc., used in connection with the timber operations, when considered in the light of what the parties had in mind and were contracting about one with the other, gives no countenance to the contentious here made that the owners of the property were parting with any inherent right which they possessed to control, govern, and dispose of what belonged to them, to wit, the exclusive right to part with the fee of the entire property, or contract with any person in and about any lawful, undertaking which they felt would be a benefit to the same, [t was manifestly not within the mind of either party that, in the exercise of this grant incident to the cutting of the timber, the lumber company would or could do anything, not reasonably necessary to the operation of its business, calculated to injuriously aifect either the portion of the property upon which they were operating, or the residue of the tract; and what it is alleged the appellants are doing here would not only seriously affect both interests, but involve the appel-lees in great loss by reason of other lawful contracts they have seen fit to main; in connection with the development of their own property.

The suggestion was made in argument that appellees had no right to place any limitation upon the use that the lumber company or its assignees made of the houses erected by them upon the premises in connection with their lumber business, or to limit them in what should be sold to their employes on such premises. The answer to this is that the most liberal construction of the contract is that such houses should be used as weie necessary, and that only such business, if any, should be carried on, as was proper and reasonable for the lumber company’s business. The contract between the Mahan Company and G. C.

Lewis, under which Lewis conducted the general merchandise store and commissary for the use of the lumber company for two years, and until the establishment of the barroom complained of, was that he was to have the sole and exclusive right to furnish all merchandise and supplies to employés and contractors of said lumber company, and the company was to furnish such sites for stores at convenient places as should be designated by said Lewis, in order that he might properly, and in the most convenient way, furnish goods, supplies, and merchandise to said employés and contractors.

This contract, it is true, is not binding upon the appellees, the complainants, but under the

interpretation placed upon it by the parties themselves, as well as that of the contract under which the Mahan Company claimed, the right now contended for was not asserted, and appellant Lewis contented himself with conducting a commissary or general store; and during that period, at least, the sale of whisky was not thought necessary in the operation of the lumber plant.

It will be borne in mind that the lumber company is not making this-contention now, and certainly as between the owners of this property and the appellants, who doubtless desire for obvious reasons to have the exclusive right to vend intoxicating liquors in this large and rapidly developing territory, this pretext of necessity on account of any interest that the lumber company may have, should not for a moment be entertained, however much it might benefit the appellants.

At least some proof should have been offered of the necessity, if it was proposed to claim the benefit of such a right through the Mahan Company’s contract which they themselves did not assert, and the complainants, the appellees, especially contested.

We have here large property owners, engaged in the development of a great section, prolific with resources of vast value, who are demanding that whisky shall not be sold, because destructive of their interests and of the business in which they are engaged, and the usefulness of those whom they employ, on the one hand, and those seeking to secure an exclusive right to engage in such business, on the other; because, forsooth, it may be necessary, in furtherance of a business under a contract under which they claim. To sustain this position, full proof of the necessity should be required, which is utterly lacking.

The question of whether or not the conduct of the liquor business, under the circumstances, is a nuisance, has been discussed at some length; but we do not feel called upon to enter into the same, for the reason that there is no lease here, in the view we take of this case, but merely a right to cut timber, with the privileges incident thereto, which, as against the owners of the property, neither guarantees to the party acquiring the timber, or persons claiming by, through or under him, as against the owners of the property, any such privilege as the one contended for.

For these reasons, the decree of the lower court, which is plainly right, is affirmed, and the supersedeas awarded vacated,' Affirmed.