Carson v. Three States Lumber Co.

• Decision Date: 01 April 1902
• Parties: CARSON v. THREE STATES LUMBER CO.
• Court: Tennessee Supreme Court

91 S.W. 53

CARSON v. THREE STATES LUMBER CO.

Supreme Court of Tennessee.

April Term, 1902.

Appeal from Chancery Court, Lake County; Jno. S. Cooper, Chancellor.

Bill by S. B. Carson and another against the Three States Lumber Company. Decree for complainants, and defendant appeals. Bill dismissed.

W. A. Percy, for appellant. Blair Pierson, for appellee Carson.

BEARD, J.

The complainants are the owners of a tract of timbered and overflowed land lying in Lake county, in this state. In February, 1893, they sold and conveyed to Hull & Polhemus, their heirs and assigns, all of the cottonwood trees on 1,000 acres of this tract. In July, 1894, the same grantors sold and conveyed to the same grantees all the timber growing on the remainder of the tract, and in the same conveyance authorized Hull & Polhemus to cut the timber on the 1,000 acres. In other words, by the two conveyances the grantees were vested with the right and title to all trees of every kind on the entire tract.

These conveyances were made for a valuable consideration, a part of which was evidenced by notes which the grantors had sought to secure by retaining a lien in the face of their deed on the trees sold. In February, 1896, these purchase-money notes were paid off, and thereupon complainants executed a quitclaim deed to Hull & Polhemus, in which they release their liens and confirm their title to the timber theretofore conveyed in these words: "And in consideration of the same [that is, the payment of the notes] we convey and confirm to the said Hull & Polhemus all the timber rights, licenses, and privileges in the land mentioned in said deed, to their heirs and assigns forever." On the succeeding day to the execution of this quitclaim deed, Hull & Polhemus conveyed all the trees on this land to Fitshugh, and in April, 1896, Fitshugh, for a large consideration, sold and conveyed the same property to the Three States Lumber Company, which was the owner, and as such was proceeding to get the timber off the land, when the present bill was filed on May 11, 1901.

The deed to Hull & Polhemus, while conveying and confirming the title to the timber to them, their heirs and assigns forever, fixed no time for its removal, and the theory of the present bill is that they and their vendees had only a reasonable time to accomplish this, and that such a period having already elapsed, the defendant company had lost all rights to the standing timber, or to enter upon the land of complainants to cut and remove it. In other words, the complainants' construction of the deed conveying the timber is that the grantees and their assigns took title to only such as they should cut and remove within a reasonable time. On the contrary, the insistence of the defendant corporation is that no time was limited or fixed in the deed from the grantors for the removal of the timber, that it has unlimited time, and, if mistaken in this, that at least, under all the conditions existing, a reasonable period had not elapsed when it was interfered with by the injunction issued in this cause.

The chancellor adopted the first instance of the complainants, and decreed that upon a proper construction of the deeds to Hull & Polhemus, they, and those claiming under them, only took title to the timber on the land provided it was removed within a reasonable time, and such a period having elapsed, that the Three States Lumber Company had no title to any still standing, and no right to enter upon the land for the purpose of cutting or removing any of such timber. Error is assigned upon this holding.

That a grant of standing trees implies, if no more, at least a right of access to it, and the use of the land for the purpose of severance, and afterwards removing the logs or manufactured timber, was settled as early as the often cited case of Reniges v. Fogassa, Plowden, 16. This rests upon the doctrine that every grant carries with it whatever is essential to the use and enjoyment of the subject of the grant. 2 Par. on Con. 534. The presumption of the law is that this was in the contemplation of the parties, when the grant was made. Trees standing upon the land of the grantor could be of no value to the grantee, without the right of severance and removal. To him their one worth consists in being cut down and removed; and this can alone be accomplished by permitting the grantee to enter upon the lands where they are standing. The parties may, and usually do, fix the time for the enjoyment of this right, but if they do not, then what time does the law allow? Is it a period of unlimited or indefinite duration, or is it one that is reasonable under all the circumstances of the particular case?

If it be, as is insisted by the Three States Lumber Company, that it can remove the timber in question at its own convenience, without regard to the will of the complainants, or the lapse of time, it has, so far as the standing timber may interfere with the use of the soil by its owner, practically ousted him from its control and enjoyment, without having in...