SIMPSON COUNTY v. WISNER-COX LUMBER & MFG. CO., 170 F. 52

SHELBY, Circuit Judge (after stating the facts as above). This is a bill to enjoin the defendant from cutting and removing for commercial purposes all the timber from parts of a sixteenth section. The bill shows that the defendant holds the land as assignee of a lease for 99 years. The lease'was made by authority of a statute of the state of Mississippi. It is alleged that the defendant claims to have the right to denude the land of all its growing timber; that, in fact, .it claims to be, by virtue of the lease, the owner of the land in fee.

The demurrer is on the ground that under the lease the lessee acquired the whole estate in the land during the period of 99 years. The position of the defendant by the demurrer is that, admitting the allegations of the bill to be true, it has the right to cut and sell all the timber growing on the land, although such action would work a lasting injury to the freehold and irreparable damage to the complainant. The controlling question in the case is whether the defendant’s estate in the land is a leasehold estate, or a determinable fee, or some estate greater than a leasehold estate.

If it is decided to be a leasehold estate, then the next and only other question is: Does the doctrine of waste, as between lessor and lessee, prevail in Mississippi? This brief statement of the case, without referring to the more elaborate averments of the bill, shows that the questions raised involve the construction of a contract made by authority of a Mississippi statute in relation to real estate situated in the state of Mississippi.

It is a principle firmly established that the federal courts will follow the construction given to the statutes of a state by the highest judicial tribunal of such state (Leffingwell v. Warren, 2 Black, 599, 603, 17 L. Ed. 261; Joseph Dixon Crucible Company v. Paul [C. C. A.] 167 Fed. 784, 788) ; and it is equally well settled that to the law of the state in which the land is situated we must look for the rules which govern its descent, alienation, and transfer, and for the effect and construction of wills and other conveyances (Clarke v. Clarke, 118 U. S. 186, 191, 30 Sup. Ct. 873, 44 L. Ed. 1028).

The mere statement of the case shows that it must he governed by the laws of Mississippi. It would be intolerable to have one rule prevailing in the state courts and another in the federal courts as to the construction of state statutes and leases of real estate situated in the state.

It is fundamental that the construction placed on a state statute by the state’s highest court is looked on by a federal court as a part of the statute itself, and that the laws of the stale, as expounded by its court of last resort, constitute the law of the laud as to the conveyance, lea.se, and titles of real estate situated within the state. We have, therefore, only to look to the laws of Mississippi to see if the two questions involved in this case have been settled by them. In 1901 the Supreme Court of Mississippi decided a case which involved a lease like those in question here.

It was an action of replevin for logs cut from

section 16, township 15, range 3 E., in Warren county. The lessees held the land under a lease for 99 years, dated in January, 1834. The case involved the right of the lessees to cut and sell the timber growing oil the land. The doctrine settled by the decision was that the tenant of a particular esta.te may cut timber for estovers and for clearing the estate for cultivation, so long as he leaves sufficient timber for permanent use and enjoyment of the inheritance. “but cannot cut the timber merely for the sale .thereof.” Warren County v. Gans, 80 Miss. 76, 31 South. 539.

This case stood unquestioned till May 7, 1906, when an opinio ' was handed down by the same court expressly overruling it, and holding that waste could not be predicated upon the fact that a lessee for 99 years denuded a sixteenth

section of all of its timber. The opinion was written by Calhoon, J., and the conclusion was concurred in by Truly, J., on the ground that the lessee for 99 years held an estate which was “intended to operate as a fee determinable at the end of 99 years.” Whitfield, C. j., dissented. This decision never became the law of the state, and, in fact, never became the law of the case in which it was announced.

Rule 10 of the Supreme Court of Mississippi provides that: “The court will, at any time during the term at which a Judgment is rendered. consider a written suggestion of error of law or fact therein, and will lake such action as may seem proper.” 70 Miss. xsJi (preface), 13 South, vi. A written “suggestion of error” was made under this rule, and, on a rehearing, the final decision of the court was announced on November 26, 1906. The opinion of the court was delivered by Mayes, J. (who succeeded Truly, J., whose term had expired), and concurred in by a separate opinion by Whitfield, C. J.

The effect was to reinstate the doctrine announced in Warren County v. Gans, supra. It was held that a lease, like those described in the bill in the instant case, is governed by the principles governing estates for years, and gives no right in the fee, and that, in the absence of a stipulation in the lease to the contrary, the lessee of sixteenth

section lands for 99 years has no right to cut the timber for sale beyond his right as a tenant for years, and that if such lessee cut the timber, and carried it away to be manufactured into lumber and sold, and not for the purpose of clearing the land- for cultivation, such lessee would be liable for waste. We content ourselves with referring to the very able and elaborate opinions of Whitfield, C. J., and Mayes, J., as stating the laws of Mississippi on the questions involved. Moss Point Lumber Company v. Harrison County, 89 Miss. 448, 42 South. 290, 296, 302, 873.

We find nothing in the previous decisions of the Supreme Court of Mississippi that cannot be reconciled with the final decision of the court in Moss Point Cumber Company v. Harrison County, supra. Our attention is called to several cases claimed to be in conflict with this conclusion; but they are all referred to and explained to our entire satisfaction in the two opinions which we have cited as controlling. There is nothing in the averments of the bill or in the record as now presented to take the case out of the general rule requiring this court to be governed by the decisions of the state court of last resort.

The decree of the Circuit Court is reversed, and the cause remanded, with instructions to overrule the demurrer, and for further proceedings in conformity to the opinion of this court.