BEFORE DAN LEE, SULLIVAN AND ZUCCARO.
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
Both sides appeal the judgment rendered in this suit in the Chancery Court of Yalobusha County, Mississippi. Cook Construction Co., Inc., brought suit to recover damages allegedly suffered when Marlyn Yarbrough took timber salvaged by Cook from an abandoned railroad bridges. Yarbrough took the timber from the former right-of-way according to a deed granted Bondafoam
by the railroad. Yarbrough acted with the consent of Bondafoam, Inc., of which he is a major stockholder. The chancellor found that Yarbrough had a right to remove some but not all of the timber. The chancellor granted judgment in favor of Cook Construction Co., Inc., for $5,020, for two-thirds of the timber Yarbrough took, and awarded $4,000 in attorney fees to Cook. The judgment held both defendants jointly and severally liable. From this judgment, both sides appeal, assigning numerous errors. Since we find that the evidence supported the award with the exception of attorney's fees, we reverse and render only that part of the judgment below.
The dispute at trial involved who owned timber salvaged from dismantled railroad bridges along the Oxford-to-Coffeeville line.
The Illinois Central Gulf Railroad (ICG) wanted to abandon this line and contracted for its removal. Cook Construction Co., Inc. (Cook), as subcontractor to a prime contractor with ICG, dismantled the bridges but left the timber along the track right-of-way for later shipment. ICG deeded a small part of the right-of-way by quitclaim deed to Bondafoam, reserving to itself the track and appurtenances until a certain date. When the date passed, Cook had not removed the timber from the former right-of-way. At this time Yarbrough, believing that the timber now belonged to Bondafoam according to its quitclaim deed, removed the timber for personal uses. In the meantime, unbeknownst to Yarbrough or Bondafoam, Cook had negotiated to sell the timber to a third person who backed out after it was discovered that Yarbrough had taken some of the timbers. This suit followed.
On August 13, 1982, ICG contracted with Azcon Corporation, Hyman-Michaels Division (" Azcon "), for the removal of railroad track on several abandoned Mississippi railroad lines. The contract between Azcon and ICG provided for removal and track and bridges. The work description for the bridges stated:
b. Remove 64 timber trestles and four steel spans. 224 stringers, 24 timer caps, 29 concrete caps and steel spans from Bridges 582.2, 589.0 and 589.5 shall be removed by the Contractor and returned to the Railroad. All other bridge materials shall be removed and become property of the Contractor.
The contract specifications for dismantling and removing timber railroad trestles provided in part:
The Contractor shall remove the deck construction, the stringers, pile caps, piling with bracing, bulkheads and other timber trestle construction at
each bridge noted in the Special Provisions. The material, except as noted in the Special Provisions, shall become the property of the Contractor and it shall be removed from the property of the railroad.
The exceptions which were to remain ICG's property were separately marked and removed and are not at issue in this case.
On September 27, 1982, over one month after ICG contracted with Azcon, ICG quitclaimed to Bondafoam a segment of the ICG right-of-way on the Oxford-Coffeeville line. The conveyance consisted of an approximately one-mile stretch of railroad right-of-way that ran beside Bondafoam's Water Valley plant. The segment ran south from the center line of bridge No. 589.8 over the Otuckalofa Creek to the center line of bridge No. ...