Bros v. Branham

• Citation: 109 S.E. 189
• Parties: WILSON BROS, et al. v. BRANHAM et al.
• Decision Date: 28 September 1921
• Court: Supreme Court of Virginia

109 S.E. 189

WILSON BROS, et al.

v.BRANHAM et al.

Supreme Court of Appeals of Virginia.

Sept 28, 1921.

Appeal from Circuit Court, Dickenson County.

Suit by William J. Branham and another against Wilson Bros, and another. Decree for complainants, and defendants appeal. Reversed.

Sale & Harris, of Richmond, and Chase & McCoy, of Olintwood, for appellants.

A. A. Skeen, of Clintwood, Phipps & Phipps, of Clintwood, O. M. Vicars, of Wise, J. W. Flannagan, Jr., of Grundy, and Geo. C. Peery, of Tazewell, for appellees.

SAUNDERS, J. This is an appeal from a decree of the circuit court of Dickenson county, pronounced October 15, 1919. The main question presented for determination is the proper interpretation and true construction of a deed made by Felix Senter, M. L. Senter, and Winnie Senter, his wife, A. C. Senter and M. J. Senter, his wife, to Caroline Harris.

The pertinent facts necessary for an adequate understanding of the genesis and development of this controversy are as follows:

In the year 1904, M. L. Senter, A. C. Senter, and their wives, and Felix Senter, for value received, conveyed certain standing trees in the county of Dickenson to one Caroline H. Harris. This conveyance, so far as is needful, is herewith reproduced:

"The parties of the first part bargain, sell, grant, and convey unto the party of the second part, or assigns, with covenants of general warranty of title, freedom from all incumbrances, and peaceable and quiet possession, the following property, viz.: Six hundred and forty-three (043) white oak trees 20 to 40 inches in diameter, six hundred and forty-three (643) white oak trees over 24 inches in diameter. All of said trees containing from 24 feet and over of straight trunk, or body, clear of limbs and visible defects, and are branded, or marked with letter H cut in the bark, and are standing and growing on the land of the said first parties, located on the waters of Cane creek of Pound river, and bounded and described as follows: * * *

"The parties of the first part grant unto said second party, his heirs and assigns, the right to enter on said land at any time free of charges or damages, for the purpose of cutting, manufacturing, and removing said trees or their products from the land, and for that purpose grant unto the party of the second part, or his assigns, the right to build and open all wagon roads, train roads, or station roads on, through or over said lands. The parties of the first part grant unto said second party, or assigns, free of cost, the right to erect mills on said land for the purpose of cutting said trees into lumber or into staves. The party of the second part, or assigns, has the right to use free of charge sufficient timber for necessary tramroads on said tract of land, so that no valuable, merchantable timbers shall be used for said tramroads. The party of the second part or his assigns are to have ten years from March 10, 1902, in which to cut and remove said trees from said lands, and if the party of the second part or his assigns shall fail to cut and remove said trees from said land within tenyears from March 10, 1902, then the parties of the first part, or the owners of the land, shall have the right to deaden such of said trees as may be standing upon said land, which the owner may clear for cultivation. The said first parties covenant with the party of the second part that their title to said tract of land is perfect, and that they have a perfect right to sell and convey said trees, together with rights and privileges herein set forth."

The rights, titles, and interest derived by Caroline Harris under this deed passed by successive conveyances, until finally they were lodged in W. H. and F. G. Wilson. It will be noted that under the Senter deed relating to the white oak trees on the lands of the Senters, Caroline Harris, the vendee of the Senters, was given the right to enter at any time upon the lands described in her deed, and cut and remove the trees therein conveyed to her. Title to the lands on which these trees were growing remained in the grantors.

The bill in this case is filed by W. J. Bran-ham and William McKinley Phipps. These parties are the grantees in a deed bearing date September 5, 1917, from Josephine H. Stanley and John W. Stanley, her husband. W. J. Branham was the grantee in a deed from the same parties, of date September 4,

1916. This latter deed conveyed to the said Branham, with general warranty, the standing trees on the lands of the said Josephine Stanley, the same "being originally a part of the tract of land of the aforesaid Felix Senter, and a part of the land recovered by Josephine Stanley in the chancery cause of Josephine Stanley v. M. L. Senter and others." Some of the trees comprehended in this conveyance, to wit, 341 white oak trees branded H, were a part of the trees embraced in the deed supra from the Senters to Caroline Harris, and are referred to as the Caroline H. Harris timber. The timber conveyed by Josephine Stanley to Branham stood upon land which the said Josephine owned in fee, but It is not necessary to trace in detail her title in this respect. Suffice it to say that it was duly derived. The deed of September 4, 1916, gave the grantee full right to cut and remove during a specified period the timber conveyed.

Subsequent to the deed ubi supra, Wm. McKinley Phipps purchased from Branham a one-half interest in the 341 white oak trees branded H—that is to say, the Caroline Harris timber. Thereafter, on September 5,

1917, the said Josephine Stanley and her husband, by a deed which recited the trees sold to Branham, and the terms of sale, and the purchase from Branham by Phipps of a one-half interest in the said 341 trees, enlarged the period within which the said trees could be removed from Mrs. Stanley's lands by said Branham and Phipps.

Some time in June, 1919, Branham and f Phipps filed a bill in chancery in the circuit court of Dickinson county, claiming to be the owners of the 341 branded trees aforesaid, and alleging that W. H. Wilson and F. G. Wilson, doing business as Wilson Bros., and one G. H. Holmes, were cutting and removing said trees. The plaintiffs asked for an injunction restraining the activities of Wilson Bros, and Holmes, also an account of damages. About the time that Branham and Phipps applied for this injunction against Wilson Bros, and Holmes, as recited supra, the W. M. Ritter Lumber Company, a corporation, made application for like relief on the same grounds against the same parties. The lumber company claimed that it was seized and possessed of all of the trees and timber of every kind on a 100-acre tract, the former property of Josephine Stanley, and traced its title as follows: (11 By deed to said company from O. M. Vicars and wife, George C. Peery and wife, and Columbus Phipps and wife, dated May 29, 1917. This deed conveys to the Ritter Lumber Company, with general warranty, all of the timber of every description on the 100-acre tract supra, with complete rights, etc., of cutting and removing same within a specified period.

Looking to the deeds from Josephine Stanley and husband to Vicars and associates, predecessors in title to the lumber company, it will be noted that the grantors convey to the said Vicars and associates the 100-acre tract In fee, making no reference to the timber on same. These deeds are three in number, bearing date, respectively, April 3. 1914, March 15, 1915, and October 14, 1915. The first deed in point of time was made when Josephine Stanley was an infant. The second deed ratifies the deed of April 3, 1914. The deed of October 14, 1915, makes a correction in the description and acreage of the land referred to in the prior deeds. But, as stated supra, there is no reference to timber in any one of the three deeds, all of which are prior in time to the deed of Josephine Stanley and her husband to William J. Branham. It is not needful to trace in full detail the title of the Ritter Company through Josephine Stanley to Felix Senter. Evidently Vicars, Peery, and Phipps, as the owners in fee of the 100-acre tract, claimed to own all the standing timber thereon. The bill of the lumber company alleged that Wilson Bros, and Holmes were cutting the standing timber on said 100-acre tract— that is, the Caroline Harris timber—and, like Branham and Phipps, it asked for an injunction restraining these acts and an account of damages.

In vacation of the circuit court of Dickenson county, on June 2, 1919, a preliminary injunction was awarded in the case of Ritter Lumber Company v. Wilson Bros, and Holmes. On June 12th a like order of injunction was entered in the case of Branham and Phipps against the same defendants.

The defendants later filed an answer in each of the foregoing cases.

In their answer in the case of Branham and Phipps v. Wilson Bros. and Holmes, Wilson Bros, claimed the 341 branded white oak trees standing and growing on the lands of Josephine Stanley. They denied that any right, title, or interest in these trees passed to the plaintiffs under the deeds from Stanley and wife. Further, the respondents set up their chain of title to said timber and trees, the same being the deed supra from the Senters to Caroline Harris, and successive conveyances thereafter; the last in the series being the deed of John Golding and Herbert A. Beard and their wives. By these deeds all the right, title, and interest of Caroline Harris in the timber aforesaid passed to and was finally lodged in respondents, the said W. H. and F. G. Wilson. The answer denied that respondents had done anything to lose or forfeit the estate and rights derived through conveyances in course from Caroline Harris, or that they, or their predecessors in title, "had ever abandoned said trees, or any of them." On the contrary, they asserted that they "had at all times claimed the same, and paid the taxes from year to year on the same, and have at all times asserted, and are now asserting,...