Cooley v. Meridian Lumber Co., Ltd.

• Decision Date: 27 May 1940
• Docket Number: 35642.
• Citation: 197 So. 255,195 La. 631
• Court: Louisiana Supreme Court
• Parties: COOLEY et al. v. MERIDIAN LUMBER CO., Limited.

197 So. 255

195 La. 631

COOLEY et al. v. MERIDIAN LUMBER CO., Limited.

No. 35642.

Supreme Court of Louisiana.

May 27, 1940

Rehearing Denied June 28, 1940.

Appeal from Eleventh Judicial District Court, Parish of Vernon; Hal A. Burgess, Judge.

Suit by Mrs. Janie Cooley and others against the Meridian Lumber Company, Limited, for the construction of a deed and injunctive relief. From the judgment, plaintiffs and defendants appeal.

Amended and, as amended, affirmed.

Sidney I. Foster, of Leesville, for plaintiffs and appellants.

Ledoux R. Provosty, of Alexandria, for defendant and appellee.

ODOM Justice.

On September 10, 1901, Samuel C. Tippet sold to F. E., A. M and W.B. Gloyd ‘ all the timber standing, being and growing on and upon’ 80 acres of land in Vernon Parish for $300 cash, the vendees to have 50 years from that date in which to remove the timber.

On March 13, 1902, Tippet sold the land to Joel E. Cooley ‘ with all pine Timber reserved and excepted and withheld from said Joel E. Cooley’ .

The plaintiffs in this suit are the widow and sole heirs of Joel E. Cooley. The defendant is the Meridian Lumber Company, Ltd., to which the timber passed from the Gloyds by mesne conveyances.

Plaintiffs allege that they are the owners of the land and set out their chain of title, which consists only of a patent from the United States to Samuel C. Tippet and the deed from Tippet to Joel E. Cooley conveying the land itself, ‘ with all pine Timber reserved and excepted and withheld from said Joel E. Cooley’ . Plaintiffs allege that the term of 50 years named in the deed for the removal of the timber from the land ‘ is unreasonable and in effect amounts to a confiscation of their property, depriving them of the use thereof’ ; that none of the timber has been cut and removed from the land, and that from the date of the timber deed in 1901 to the date of the filing of the suit on November 21, 1938, ‘ new and distinct crop of timber has grown and developed into merchantable pine timber that was not in existence, or even contemplated, or conveyed by the above named timber deed. * * * and that the present owners of the timber sold on Sept. 10th 1901 are now claiming the ownership of all the merchantable timber standing and growing upon said tract of land’, including the small trees on the land at the time of the sale which were not then suitable for lumber but which have grown to be of merchantable size since that time, and the trees which were not then in existence but which have grown up on the land since that time.

They further allege that the timber deed referred to ‘ had reference to, and conveyed, only such timber as was merchantable at that time, and for which there was a market at that time’ ; and that plaintiffs are now the owners of all the timber on the land, except that which was merchantable at the time the timber deed was made in 1901; that they own the timber which was on the land in 1901 but which was then less than 10 inches in diameter at the stump, as well as all timber now on the land which was not in existence at the time the timber deed was made. And they pray for judgment so decreeing.

In a supplemental petition, plaintiffs allege that the modern method of removing timber from land is to use what is called a ‘ steam skidder’, which destroys all small timber growing on the land, and they pray that defendant be enjoined from the use of such machinery for the removal of the timber from their land.

Defendant excepted to plaintiffs' petition on the ground that it set out no cause or right of action. This exception is based on the ground that, when Joel E. Cooley purchased the land from Tippet in 1902, there was excepted from the deed all the pine timber, for which reason plaintiffs have no interest in the timber which they now claim, even if it be conceded that defendant is not the owner of it, because their ancestor acquired no right whatever to the timber but acquired the land in naked ownership only. This exception was referred to the merits and finally overruled.

Defendant also pleaded estoppel, this plea being based upon the ground that, in 1929, Joel E. Cooley sold to H. E. Moore five acres of this land, the deed containing the following clause: ‘ All timber being sold previous to the execution of this deed’ .

Defendant in its answer admitted that it is ‘ claiming ownership to all of the timber standing, being and growing on the property described in Article 3 of the petition’ . It especially denied that plaintiffs are the owners of any of the timber on the land, and asserted that it owns all of the timber now on the land of whatever size, character, and description, including that which was not in existence in 1901 when the timber deed was executed.

There was judgment in favor of plaintiffs and against defendant, overruling the exception of no cause or right of action and the plea of estoppel, and recognizing plaintiffs as the owners of ‘ all the old field pine of every size and dimension now being upon’ the said land and as the owners ‘ of all timber of every kind under ten (10) inches in diameter now being and growing upon said land’, and decreeing ‘ that all timber not of the ‘ short leaf’ otherwise known as ‘ old field pine’ , that is now ten (10) inches in diameter, or over,' is the property of the defendant.

From this judgment both sides appealed.

The defendant is entitled now to all of the property, rights, and privileges conveyed by Samuel C. Tippet and his wife to the Gloyds by the timber deed dated September 10, 1901. That deed, which was executed about 37 years before this suit was filed, conveyed ‘ all the timber standing, being and growing on’ the land then owned in fee by Tippet, ‘ with the right to take and remove said timber off and from said land at any time within a period of 50 years from the date of this instrument’ . Defendant traces its title to the timber through mesne conveyances to the Gloyds. Each of the conveyances from the first one to the last contains the same description of the timber conveyed and the same period of time for the removal thereof from the land. Neither the defendant nor any of its predecessors has ever exercised any of the rights and privileges granted.

The major point presented for our consideration and decision arises out of a controversy between plaintiffs and the defendant as to what defendant now owns under the original grant and those made under and pursuant thereto, and what its rights and privileges now are. Plaintiffs' contention is that the deed from Tippet to the Gloyds conveyed only such timber as could be manufactured into lumber at that time; and that defendant does not now own, and is not entitled to remove, any of the trees on the land at the time of the original grant which were then too small to be manufactured into lumber but which have since grown to a size suitable for that purpose, or any of the trees which are now on the land but which were not in existence at the time of the original grant. In other words, plaintiffs contend that the estate conveyed by Tippet to the Gloyds consisted only of the trees then on the land which were suitable for manufacture into lumber, and that defendant does not get the benefit of the growth of any of the trees except those intended to be conveyed, and is not entitled to the growth of the small trees which were then under size and the trees which have since grown up on the land.

Defendant on the contrary claims the ownership of, and the right to remove, all the trees presently on the land, of whatever size, character, or description.

Taking up first the question as to what the Gloyds acquired from Tippet under the timber deed, we note that the original deed and those which follow it mention ‘ timber’ but say nothing about ‘ trees'. The grant by its terms includes ‘ all the timber standing, being and growing on’ the land. Ordinarily, timber deeds are more specific than these as to description. Usually such deeds convey the ‘ merchantable timber’, ‘ timber suitable for sawmills', ‘ timber suitable for manufacturing purposes', or trees of certain kinds with size or dimensions given. But there is nothing in these deeds which throws any light upon what is meant by the language ‘ all timber standing, being and growing on’ the land.

The cardinal rule for the interpretation of contracts is that courts must seek for, and ascertain, the mutual intention of the parties, if that is possible. This, in substance, is the rule laid down in Article 1945 of the Revised Civil Code, and Article 1946 of the Code says that ‘ The words of a contract are to be understood, like those of a law, in the [their] common and usual signification, without attending so much to grammatical rules, as to general and popular use’ .

Following this rule, in order to determine what the contracting parties themselves understood to be the meaning of the word ‘ timber’ as used in the contract, we must give consideration to the surrounding circumstances existing at the time the contract was made, the use then made ordinarily of trees severed from the land under a timber grant, the industrial enterprises then existing in the particular section which, by the use of timber, created a market for it, and the meaning and signification which the word ‘ timber’ had at that time.

The testimony shows that in 1901, the date of the original timber grant, the only industrial enterprises operating in the section of the state where this land was located were sawmills which manufactured timber into lumber. The only testimony in the record directly touching the point shows that there was then no market for small trees, poles, or saplings. There was a limited demand for trees suitable for the making of crossties, but none...