Glenn Chapman v. John Alex Thornhill
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01649-COA
GLENN CHAPMAN
v.
JOHN ALEX THORNHILL
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
09/12/2000
HON. JERRY G. MASON
CLARKE COUNTY CHANCERY COURT
JOHN E. HOWELL
HENRY PALMER
CIVIL - REAL PROPERTY
APPELLEE TO REIMBURSE APPELLANT FOR
PAYMENT OF REAL PROPERTY TAXES;
APPELLANT'S REQUESTS FOR OTHER RELIEF WAS
DENIED.
AFFIRMED - 12/18/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
1/8/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Glenn Chapman, the life tenant on two parcels of timber property, appeals the judgment of the chancery
court denying his request for "estovers," for appointment of a timber consultant or forester to manage the
two parcels, for designation of trees planted by him as his personal property, and for allowing the two
parcels to be cleared for either land farming or cattle raising. He also finds error in the remainderman's being
made to pay the real property taxes. We find no error and affirm.
STATEMENT OF FACTS
¶2. Glenn Chapman and John Alex Thornhill are not especially close first cousins. They are a litigious pair,
though, having had two matters in which they were adverse parties previously decided by this Court. See
Thornhill v. Chapman, 748 So. 2d 819 (Miss. Ct. App. 1999) and Twin States Land & Timber Co.,
Inc. v. Chapman, 750 So. 2d 567 (Miss. Ct. App. 1999).
¶3. Thornhill granted Chapman a life estate in two parcels of property: a 76 acre parcel in 1988, and a 120
acre parcel in 1990. Thornhill testified that he now regrets having done so. Located on the 120 acre parcel
was a house which Chapman occupied, but it was destroyed by fire in 1996. Chapman initially filed an
action against International Paper Company in chancery court alleging negligence for the fire. Out of that
and related litigation grew his first claims against Thornhill. The chancellor ordered that these claims about
permissible use of the timber on Chapman's property be brought as a separate civil action.
¶4. No new complaint was filed, but Chapman's suit was supported by his "motion to establish estovers and
for declaratory judgment." Chapman requested that all pine trees planted on the 76 acre and 120 acre
parcels be declared his sole personal property, and that he be declared entitled to estovers from the
parcels. Chapman alleged that he required estovers for "food, clothing, and the essentials of life", and the
payment for taxes. His requirements amounted to the sum of $10,000 per year. Chapman sought
appointment of a timber consultant to "develop a management plan for these properties, which would be of
the most benefit for the estate and provide the life tenant with the essentials of life which he is entitled."
Chapman amended his motion to request in the alternative that timber be cleared from the two parcels of
property for the purposes of making them suitable for farming or raising cattle. Chapman filed a second
amendment alleging additional grounds for why he should be allowed to cut timber.
¶5. A one day trial was held. Both Chapman and Thornhill testified and each presented his own timber
consultant. Chapman testified that he lived on the 76 acre parcel. It contained "a pine plantation, two pine
plantations of different ages and mixed with approximately 40 acres." Chapman said that he had planted 11,
000 pine trees on a portion of the 76 acre tract in 1991 and 18,000 pine trees on the open areas and open
fields within the 120 acre parcel. No one assisted him in this.
¶6. Chapman further testified that since the inception of his life estate he had paid between $3500 and
$3600 in property taxes. In 1990 Chapman and Thornhill sold all the merchantable timber located on part
of the 120 acre parcel. Chapman testified that a portion of the parcel was clear-cut. Chapman also
introduced timber deeds between Thornhill's predecessors-in-interest and other logging companies. Other
than one timber sale in 1994 which produced $2,000, Chapman testified that he had not received any other
income from either parcel.
¶7. Chapman then testified as to his need for money. He had spent all of the $21,000 awarded him in
previous litigation against Thornhill, which dealt with the division of a certificate of deposit owned jointly by
Chapman and Thornhill. Thornhill v. Chapman, 748 So. 2d 819 (Miss. Ct. App. 1999). His monthly
expenses amounted to $1048. A monthly payment of $500 was for a personal loan on which a balance of
$3500 remained. His current monthly income was only $948. Chapman testified that the real property taxes
on the two parcels averaged seven dollars per month.
¶8. What Chapman in part sought was the right to cut timber under the common law doctrine that provides
for estovers. More will appear as to that principle later, but for now we will explain that estovers have had a
varied meaning beginning with the importation of the common law into this country. Recognized in
Mississippi is a right for a life tenant to cut such timber from the property as is needed for fencing,
construction of other necessary structures, and for fuel. Hood v. Foster, 194 Miss. 812, 818, 13 So. 2d
652, 653 (1943). Chapman argued that he should be allowed to cut such timber as was needed to meet his
monthly expenses and repay his debts. Chapman testified that harvesting timber worth $10,000 per year
would be adequate. The extra income would be used to buy a vehicle and to move out of his house trailer.
In sum, the funds from harvesting the timber would provide Chapman with his essential needs and his
current income could be diverted to provide for a higher standard of living.
¶9. Chapman also wanted the chancery court to establish a management plan for the two parcels. Chapman
had not discussed with Thornhill how the two tracts of land were to be used, but he believed that the best
use was for tree farming. No livestock was on the two parcels of timberland.
¶10. Thornhill testified that he offered to pay the property taxes on both parcels of property, thereby
reducing Chapman's financial needs arising from the property. When Thornhill purchased the two parcels,
his purpose "was investment and something to leave my heirs." In addition to those purposes, Thornhill
intended to use the properties for "timber." Thornhill testified that he only agreed to the one timber sale that
had occurred because Chapman "kept bothering me to sell it." After that sale, Thornhill testified that
Chapman "cleared it and set it out in seedling, pine seedlings." Thornhill testified that he and Chapman had
no "understanding" with one another concerning the pine seedlings that Chapman planted.
¶11. Thornhill insisted that he did not want any of the trees cut. It was his belief that harvesting timber to
provide Chapman with estovers was unnecessary because he was willing to reimburse Chapman for the
property taxes. Further, no improvements were needed on the property.
¶12. Thornhill agreed that the only tree planting had been conducted by Chapman, except for a few that
Thornhill planted shortly after purchasing the property. Thornhill's timber consultant agreed with Chapman's
consultant that the landowner's objective was a primary consideration in constructing a timber management
plan. Therefore, whether trees should periodically be cut to maximize growth was not a forestry issue, just a
personal preference by the owner.
¶13. The chancellor found that Chapman was not entitled to cut timber as he proposed. The only relief that
he granted, and it is relief that Chapman here attempts to reverse, was to require Thornhill to pay the
property taxes.
DISCUSSION
1. Declaratory Judgment
¶14. The rules of civil procedure state that "[c]ourts of record within their respective jurisdictions may
declare rights, status, and other legal relations regardless of whether further relief is or could be claimed."
M.R.C.P. 57(a). On the other hand, a declaratory judgment may properly be denied "where such
judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding." Id.
¶15. The question here is whether Chapman is seeking a declaratory judgment or just an advisory opinion.
It is proper to declare the rights of the parties if the case involves "an actual controversy that has not
reached the stage at which either party may seek a coercive remedy, or in which the party entitled to such a
remedy fails to sue for it." M.R.C.P. 57 cmt. These are the considerations for granting judgment: "(1) when
the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it
will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the
proceeding." M.R.C.P. 57 cmt.
¶16. Here, the disagreement between the parties about the extent of the life tenant's right to cut the timber
has been recurring and litigated. That certainly makes Rule 57 attractive since "one or more legal issues vital
to the controversy is susceptible of authoritative resolution." Johnson v. Hinds County, 524 So. 2d 947,
954 (Miss. 1988). The Fifth Circuit Court of Appeals has stated that a declaratory judgment "is particularly
well suited for situations that have evolved to a point of inevitable or imminent litigation." Armco, Inc. v.
Southern Rock, Inc., 778 F.2d 1134, 1138 (5th Cir. 1985); Stringfellow v. Stringfellow, 451 So. 2d
219, 221 (Miss. 1984) (we will consider federal rule interpretations when assessing the meaning of a similar
state procedural rule).
¶17. Considering the history of litigation between these two parties, it appears certain that further litigation
would be inevitable. Whether Chapman is correct that what he is going to do is covered by the right of the
life tenant to estovers is determinative. The resolution of that issue would "afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding." We find that a declaratory judgment is
appropriate.
2. Estovers
¶18. Chapman argues that he, as the life tenant, should be allowed to harvest timber in order to provide
himself with the essentials of life. However, the chancery court found that Chapman wants to harvest the
trees in order "to meet his monthly debts, buy a vehicle, get out of the house trailer and increase his
standard of living." The chancellor thereafter denied Chapman's request for estovers.
¶19. The law as to estovers is not much litigated. "Estover" is defined as "[w]ood that a tenant is allowed to
take for fuel, the manufacture or repair of agricultural instruments, and the erection and maintenance of
fences and hedges; necessary supplies." Black's Law Dictionary, 572 (7th ed. 1999). That means that the
wood is used by the life tenant himself, not sold.
¶20. One of the standard treatises on real property has given a useful explanation of the life tenant's rights.
They include "the right to 'take reasonable estovers from the land, that is, wood for fuel, fences, agricultural
erections, and other necessary improvements and repairs." Thompson on Real Property, § 19.01, 721
(David A. Thomas ed., 2d ed. 1998). What is helpful about the treatise is that it traces the changing
meaning of estovers as the culture, economy, and use of rural property has evolved. "The law involving the
life tenant's right to cut standing timber . . . has made almost a full circle." Id. at § 19.08, 788. "In early
American history, where land was required to be cleared for cultivation, timber was a nuisance and clearing
did not constitute waste." Id. "But even under this rule neither a life tenant nor a grantee has a right to
remove commercial timber from the land." Id. at 789. "Almost everywhere today, however, timber has
become so valuable that the cutting of standing timber by the life tenant is waste." Thompson on Real
Property, § 19.08, 790 (David A. Thomas ed., 2d ed. 1998). "Under the common law and the great weight
today, the cutting of timber other than for estovers by a life tenant is waste . . . ." Id.
¶21. Certainly the concept of "waste" is the approach taken in Mississippi. Waste is a "substantial injury
done to the inheritance, by one having a limited estate, during the continuance of his estate." Moss Point
Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss. 448, 526, 42 So. 290, 300 (1906).
¶22. Chapman points us to a lengthy discussion in caselaw.
By the common law of England, "waste" is defined with great accuracy, and ancient statutes there
have made tenants for years liable for waste. The doctrine has been adopted in this country so far as it
is suitable to our condition and circumstances as a new and growing country, and, in a more or less
modified form, is administered in most, if not all, of the states of the American Union. The rigid rule of
the common law that a tenant of a particular estate could not cut timber, except for estovers only, is in
many jurisdictions modified so as to allow him to cut off the timber for clearing so much of the estate
as the needs of his family may require for their support, though the timber be destroyed thereby. And
he may clear for cultivation such portions of it as a prudent owner in fee would clear for that purpose,
provided he leaves enough timber and wood as may be necessary for the permanent use and
enjoyment of the inheritance. His right to open and clear for cultivation wild and uncultivated land is
that of a prudent owner, having regard to its amelioration as an inheritance. When the particular tenant
cuts timber in the process of clearing the land for immediate cultivation, he can appropriate it or its
proceeds to his own benefit, but he cannot cut the timber for sale without making himself amenable for
waste. When the timber is cut by the tenant or others unnecessarily or unlawfully, the right of the
reversioner or remainder- man at once attaches, and he may bring an action on the case in the nature
of waste for his damages, or he may bring trover or replevin for the timber severed from the
inheritance. Whether the tenant cut timber unnecessarily upon a claim of so doing for reasonable
estovers or for the cultivation of the land, and whether sufficient wood and timber were left for the
permanent use of the inheritance, are questions for the decision of the jury.
Board of Supervisors of Warren County v. Gans, 80 Miss. 76, 81-2, 31 So. 539, 540 (1901) overruled
on other grounds by Moss Point Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss.
448, 510, 42 So. 290, 295 (1906).
¶23. Chapman emphasizes the phrase "so as to allow him to cut off the timber for clearing so much of the
estate as the needs of his family may require for their support." He argues that estovers must therefore
include more than wood for fuel, repair of agricultural implements, and the construction of fences. Chapman
has confused the issue. The Supreme Court was describing the life tenant's right to clear a reasonable sized
area for what might be best described as "subsistence farming." It was not permitting the periodic harvesting
of timber for sale commercially. That would make the exception for estovers consume the general rule
against waste.
¶24. Less than one year later, the Supreme Court spoke again to the question:
While the law of waste, as established in England, is modified by its transplantation to this country to
suit the conditions of a new and uncleared country, and to allow a tenant for life to open wild lands for
necessary cultivation or to change the course of agriculture without being liable for waste, yet the
cutting down of trees for his mere profit is here, as there, considered waste. . . . Trees, when felled, or
severed from the soil, become personal property, in which the tenant in possession has no interest
when cut for profit; and the reversioner may maintain his action for the possession of the property, or
for damages therefor, in the same manner and with like effect as if he were the owner of the estate in
possession.
Learned v. Ogden, 80 Miss. 769, 779, 32 So. 278, 279 (1902).
¶25. Chapman attempts to fit under these limitations. He argues that he would only use the funds generated
by the harvesting of timber for the essentials of life. In reality, Chapman hopes to supplement his present
income with the funds generated by the harvesting of the timber. This is the "cutting down of trees for his
mere profit" and is not done for the purpose of opening wild lands for cultivation or to improve the land. A
life tenant cannot treat the estate in such a manner as materially to reduce its value below what it otherwise
would be. It does not matter that the life tenant argues that "unless he be allowed to take some of the
timber, his [life] estate will be of no value . . . . This could not alter the principle." Moss Point, 89 Miss. at
529-30, 42 So. at 301-302.
¶26. Chapman also argues that because he personally planted 29,000 pine trees on the two parcels in
question, that he should be allowed to harvest those trees. The equities involved should be judged in terms
of what a reasonable understanding of the law would have led him to believe when he planted the trees.
Chapman cites as support a decision in which a county board of supervisors sued the holders of a sixteenth
section lease to prevent their harvesting of the timber. In agreeing that the leaseholders should be enjoined
from harvesting timber, the Supreme Court appeared to emphasize that the lessee had not planted the trees.
Bernard v. Board of Supervisors of Jackson County, 216 Miss. 387, 398-99, 62 So. 2d 576, 581
(1953). Yet we do not find a holding in that case that had the lessees planted the trees, that they would be
entitled to them.
¶27. Regardless of the specific facts of the sixteenth section leasehold estate in Bernard, we find no
authority that a life tenant, if he plants the trees, is exempt from the normal rules that we have already
described that is applicable to waste. It should be noted that Chapman received reimbursement for the
planting from the United States Department of Agriculture under a cost-sharing plan. Chapman also listed in
the cost-sharing application that the primary purpose for the planting of the trees was "erosion control."
¶28. This Court has already spoken to the relative rights of Chapman and Thornhill to the timber on this
property. That statement is collateral estoppel to the arguments here, since the cause of action in the earlier
suit concerned whether Chapman had committed waste in the cutting of certain trees. Twin States Land &
Timber Co., Inc. v. Chapman, 750 So. 2d 567, 570-71 (Miss. Ct. App. 1999). The cause of action is
not the same as a different proposed cutting is involved here, but the parties and issues are the same.
Collateral Estoppel & Res Judicata, in 2 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi
Law 350-52 , § 14:7 (2001). Thus in Twin States, in which Thornhill was also a party, the issue was the
extent to which the life tenant may harvest timber from an estate and not be liable to the remainderman for
waste. We stated that the " circumstances include (a) when necessary to raise funds to pay the taxes on the
property, (b) to provide timber for repair of fences and other improvements on the property, and (c) such
harvesting as is indicated in the proper management and preservation of the property." Twin States, 750
So. 2d at 571.
¶29. The chancellor in this suit made findings on the circumstances described in Twin States. Chapman had
testified that the taxes on the two parcels averaged seven dollars per month or eighty-four dollars per year.
The chancellor found that Thornhill's offer to pay any future real property taxes would obviate the need to
harvest timber for that purpose. The chancellor found that Chapman had no interest in cutting timber for the
purposes of repairing fences or improving the property. As to the final circumstance, the chancellor found
that based on the testimony of both foresters, the timber could be managed actively or passively. The active
method required the cutting of timber to promote new growth. The passive method allowed the timber to
grow naturally without cutting. The chancellor found that evidence did not "establish that one method is any
better than the other." Therefore, there was no proof of a need to cut timber to manage or preserve the
property.
¶30. We also stated in Twin States that "when the life tenant has been found to be harvesting the timber
solely as a commercial enterprise, thereby damaging the value of the remainderman's estate, . . . the life
tenant may be enjoined from further cutting and also be made to respond in damages for the diminished
value of the remainder interest under principles of common law waste." Twin States, 750 So. 2d at 571.
¶31. Chapman looks to a different phrase in the opinion. We found that a "life tenant holds the exclusive
right to the use, possession, and enjoyment of the property during the term of the tenancy." Id. at 570.
"Trees growing upon the land are, until severed, a part of the real estate, and thus subject to the exclusive
enjoyment of the life tenant to the total exclusion of the remainderman." Id.
¶32. Chapman argues that "to the total exclusion of the remainderman" decides the issue of his right to
harvest timber during his tenancy. However, Chapman has taken this phrase out of context. His enjoyment
is limited as it ends when the tree are severed. The right to sever, i.e., cut, is subject to the rules for waste.
¶33. One additional argument that Chapman makes is that language in the deed to the 76 acre property
creating his life estate allows him to harvest the timber. The deed states that Chapman "shall have the right
during my lifetime to lease said land for oil, gas, and other minerals and to appropriate all lease money,
rentals, and production monies derived therefrom to his own use." This language refers solely to income
derived from oil, gas, and other minerals. "There is no substantial connection between timber rights and
mineral rights." Hood v. Foster, 194 Miss. 812, 820, 13 So. 2d 652, 654 (1943). This argument is without
merit.
Conclusion
¶34. The right of the life tenant to take estovers is limited. It is a concept more properly understood in the
context of a primarily agrarian society rather than our present society. The life tenant has a limited right to
cut timber without the permission of the remainderman. That right permits the raising of funds to pay taxes
on the real property. The cutting is also allowed if needed to preserve the property or to allow the owner to
provide himself food. These rights are not unlimited and must be exercised so as not to diminish the value of
the estate.
¶35. The right to estovers does not grant the life tenant the right to harvest timber for commercial purposes.
That is what Chapman wanted to do. There was no reason for the chancellor to order the employment of a
forest manager, as there was no proof that good husbandry required thinning or other intensive
management.
¶36. Finally, Chapman complains that the chancellor was without authority to order that Thornhill reimburse
him for the taxes owed on the real property. Thornhill does not appeal that part of the chancellor's
judgment, and Chapman has no standing to do so.
¶37. THE JUDGMENT OF THE CHANCERY COURT OF CLARKE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.