Anderson v. Miami Lumber Co.

• Decision Date: 13 June 1911
• Parties: ANDERSON et al. v. MIAMI LUMBER CO. et al.
• Court: Oregon Supreme Court

116 P. 1056

59 Or. 149

ANDERSON et al. v. MIAMI LUMBER CO. et al.

Supreme Court of Oregon

June 13, 1911

Appeal from Circuit Court, Tillamook County; Geo. H. Burnett, Judge.

Action by Lillie R. Anderson and S.V. Anderson against the Miami Lumber Company and others. From a judgment against the Miami Lumber Company and others, the Lumber Company appeals. Affirmed.

On May 10, 1902, plaintiffs conveyed to the Hadley Lumber Company the predecessor in interest of the Miami Lumber Company, by warranty deed, all the timber situated upon the tract of land lying adjacent to the Trusk river in Tillamook county. The deed contained this proviso: "Provided, further, that the grantee herein, or their successors or assigns, shall remove such timber from such premises within five years from the date of this instrument, and that the title to all timber not so removed and remaining on said premises at the expiration of said period of five years, shall revert to and become vested absolutely in the grantors herein." Subsequently, upon the payment of an adequate consideration the time for the removal of the timber was extended for two years. The contract expired by its terms on May 10, 1909. A short time prior to the latter date the defendants, by their contractors, Jones, Watson & Wheeler, cut down about 1,400 trees, a part of which they cut into sawlogs, and marked the remainder to be manufactured into logs; and after the 10th day of May, 1909, they were proceeding to saw and put into the river, as sawlogs, the trees so felled until the work was stopped by an injunction issued in this case. Plaintiffs brought this suit to enjoin them from removing the trees or trespassing upon the land. Defendants Ganahl and Botsford answered, disclaiming any interest in the subject-matter or any action on their part adverse to plaintiffs' interest. Jones, Watson & Wheeler answered, alleging that they were contractors under the Miami Lumber Company and that company answered, setting out the deed from plaintiffs to the Hadley Lumber Company and the subsequent extension of time, claiming that the felling of the trees within the life of the contract constituted a "removal of the timber from the premises" within the meaning of the contract. The court found against the defendants, the Miami Lumber Company and Jones, Watson & Wheeler, and dismissed the suit as to Ganahl and Botsford. The Miami Lumber Company appeals.

C.W Talmage (Talmage & Johnson, on the brief), for appellant.

R.R Duniway and A.W. Severance, for respondents.

McBRIDE J. (after stating the facts as above).

Appellant's contention in this case has been very ably and ingeniously presented, but we are unable to concede that it is sound. We agree with appellant's counsel that the present title to all the timber on the tract vested in appellant's predecessor in interest, but it was an estate upon condition liable to be defeated upon failure of the grantee to remove the timber within the time specified.

The language in the deed "provided that the grantee herein or their successors and assigns shall remove such timber from said premises within five years from the date of this instrument" would of itself make the deed conditional. Oregon Railroad & Nav. Co. v. McDonald, 112 P. 413. But in addition to this there is a clause providing that "the title to all timber not so removed and remaining on said premises at the expiration of said period of five years shall revert to and become vested absolutely in the grantors herein." Now, it is conceded that the trees in question were not, in fact, removed from the premises; that a large part of them remained upon the ground in the shape of felled trees, marked for sawing; and that a small quantity were cut already into sawlogs. It is claimed that the cutting of these trees and severing them from the soil constituted a technical "removal from the premises," and that the defendants had a reasonable time after the expiration of the grant to actually remove them. The very statement of the proposition involves a contradiction. If the timber was removed by the act of cutting, then it was removed and no further act was required. To say that it was removed as a matter of law, and that defendants had a right to enter upon the premises, after the expiration of the time limit set in the deed, and thereafter to remove it, as a matter of fact involves a degree of legal metaphysics which we are unable to attain. If trees, which have been cut down and which lie undisturbed at the foot of the stumps, are timber, or if the same trees, which have been cut into sawlogs and which are left lying where they fell, are timber, then it follows from a necessary, usual, and common-sense definition of the term "removal from the premises" that they could not be, in a legal sense, removed, while they were, in fact, remaining physically on the premises. However, as defendant's counsel have cited authorities which they claim establish an opposite view to that above indicated, we will discuss those which we consider as most strongly tending to support defendant's contention.

In Hoit v. Stratton Mills, 54 N.H. 109, 20 Am.Rep. 119, the grantor conveyed the timber on her land to the grantee by deed, agreeing to deliver it to him at a place, not on the land, at a certain time. There was a further agreement that, if she did not deliver it at the time and place mentioned, the grantee might enter and remove it. She failed to keep her agreement to deliver, and after several years had elapsed the grantee entered and removed the timber. The assignee of the grantor brought an action for trespass for the removal, and it was held that, in the absence of any stipulation to the contrary, the grantee was to be presumed to have a reasonable time within which to remove the timber, but that it could not be presumed that it was intended that he should be allowed to let it stand at his pleasure; that the grantee, having entered after a reasonable time had expired, was liable for trespass for the unlawful entry, but, there having been an absolute sale to him of the timber, he was not liable for its value. In other words, that he, having unlawfully entered to reclaim his own, was liable in damages for the unlawful entry, but not for the value of his own property, which he had removed. This case differs from the one at bar in this: (1) That no time was fixed within which the grantee might enter and remove the property; (2) that there was no clause in the deed providing for a reversion of the estate in case of the grantee's failure to remove the timber within a fixed or a reasonable time. The court lays stress upon the absence of these two provisions, saying, "The deed, in terms, says nothing about a reasonable time, and nothing about a condition of removal within a reasonable time," and it might well have added, "and nothing about a reversion in case of failure to remove within a reasonable time."

In addition to this the court held, following a rule peculiar to New Hampshire and a very few other states, but not recognized in this state or in the majority of states, that "an unconditional conveyance of growing trees without the land, instantaneously severs them from the land in contemplation of law, and transforms them into personal property"; the rule in this state being that a conveyance of growing trees upon the land conveys an interest in the land of which they are a part.

In Magnetic Ore Co. v. Marbury, 104 Ala. 465, 16 So. 632, 27 L.R.A. 434, 53 Am.St.Rep. 73, it is held that an absolute conveyance of saw timber growing on land, without condition or limitation as to time of removal, vested the title to the timber absolutely in the grantee forever. This is good law probably, but has no application to a case like the present one when there is a definite time fixed for removal of the timber and a definite reverter in case of non-removal.

The case last cited differs from the New Hampshire case in apparently ignoring the theory that a "reasonable time" within which to remove timber is implied where no time is mentioned and in holding that the grantee in such a deed is never a trespasser in entering to remove his property.

Halstead v. Jessup, 150 Ind. 85, 49 N.E. 821, was a case of absolute sale of timber with "four years to take off said timber." It was held that, in the absence of a forfeiture clause, the purchaser was entitled to take the timber after four years, but would be liable for damages. This case is easily distinguished from the case at bar by the absence of a forfeiture clause in the contract which is so conspicuous and clear in the present case, but we may remark in passing that if the learned court means to be understood as holding that a man may commit a trespass to take away timber, after the time limit provided in the deed has expired, it asserts a very novel proposition of law. The proposition that one may lawfully...