Cummer Co. v. Yager

• Decision Date: 23 May 1918
• Citation: 75 Fla. 729,79 So. 272
• Parties: CUMMER CO. et al. v. YAGER et al.
• Court: Florida Supreme Court

79 So. 272

75 Fla. 729

CUMMER CO. et al. v. YAGER et al.

Florida Supreme Court

May 23, 1918

Appeal from Circuit Court, Pasco County; O. K. Reaves, Judge.

Suit in equity by Estill L. Yager and others against Cummer Company and others. From orders overruling demurrers to the bill, and sustaining exceptions to an answer, defendants appeal. Order overruling demurrer affirmed, and order granting motion to strike parts of answer reversed for further proceedings.

Syllabus by the Court

SYLLABUS

It is competent for parties owning land to convey timber growing upon it, and grant a perpetual right to the purchaser to enter upon the land for the purpose of removing the timber therefrom.

While parties may make a contract whereby one will be entitled to a perpetual right to enter upon the land of the other and remove timber therefrom which is conveyed by one to the other, such an agreement is so unreasonable in its nature that no contract will be held to have this effect unless it is plainly manifest from its terms that such was the intention of the parties.

A deed conveying timber growing and standing upon land, without stipulating the time within which it must be removed, will be construed as implying that such removal shall be within a reasonable time, where the terms of the conveyance, or the circumstances attending the transaction, afford a just basis for an adjudication of such an implication or intendment.

What may be regarded as a reasonable time for removing growing and standing timber from the land of another, where no time within which it shall be removed is stipulated in the deed conveying it, should be determined, not by the arbitrary will of either the grantor or the grantee, but by a consideration of the location, nature, accessibility, and uses of the timber and land, as well as all the other circumstances that attended the making of the conveyance.

If the matter contained in an answer in an equity cause is relevant or can have any influence in the decision of the subject-matter of the controversy, it is not impertinent.

COUNSEL Whitaker, Himes & Whitaker, of Tampa, for appellants.

Hilton S. Hampton and F. J. Hampton, both of Tampa, for appellees.

OPINION

WEST J.

This is a suit in equity brought by the appellees, who will hereafter for convenience be referred to as complainants, against the appellants, who will be referred to as defendants, in the circuit court of Pasco county.

The bill, in substance, alleges the ownership in fee simple in the complainants of certain described lands in Pasco county and that the complainants by deed dated January 20, 1902 conveyed to Zelpha Copley----

'all of the cypress timber on the above-described land, with the right of entering on said land for the purpose of working said cypress timber, and, in consideration of your orator's permitting the said grantee to have a reasonable time within which to remove said timber, it was agreed that the grantee should pay the state and county taxes on said land pending the removal of said cypress timber, and it was understood and agreed that, as your orator did not desire the immediate possession of said land, said grantee should have a reasonable time within which to remove the same.'

That thereafter, on September 15, 1902, said Copley sold and conveyed the said cypress timber to Jacob Cummer and others who thereupon on January 22, 1904, by deed conveyed said timber to the Cummer Company, a corporation; that all of said deeds were taken with full knowledge of the agreement and contract between complainant and her grantee that complainants have from time to time since the date upon which said Cummer Company became the owner thereof requested it to remove said timber from said land, and said company has from time to time promised complainants that, if they would extend the time for doing so, the timber would be removed; that although a reasonable time for the removal of said timber from said land has elapsed, said company has failed and refused to remove it, and still refuses so to do, and that such action amounts to a confiscation of said land, prevents complainants from using it, and thereby does them irreparable injury. A copy of the deed was attached to the bill and made a part of it.

The prayer is that the defendant the Cummer Company shall be required by order of the court, 'within a short date to be fixed by this court, to remove its said timber from said land,' pay all taxes thereon according to its agreement, vacate and quitclaim all right, title, and interest in and to said cypress timber, and that in default thereof the said several deeds conveying said timber from said complainant to said company be canceled and annulled; that the defendants and all persons claiming under them may be barred and foreclosed of all rights to or interest in said cypress timber; and for general relief.

The deed, omitting formal parts, is as follows:

'This indenture, made and entered into this the 20th day of June, A. D. 1902, between Estill L. Yager and Arthur Yager, her husband, of the county of Scott and state of Kentucky, parties of the first part, and Zelpha Copley, of Grand Rapids, state of Michigan, party of the second part:

'Witnesseth, that the said parties of the first part, for and in consideration of the sum of seven hundred and twenty-five ($725.00) and other valuable considerations dollars, to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said party of the second part, and her heirs and assigns forever, the cypress timber land lying, being and situate in the said county of Pasco and state of Florida, to wit:

'All of the cypress timber now growing and standing and all the cypress timber dead and lying on the ground on the northeast quarter of section sixteen (16) township twenty-five (25) south of range twenty-two (22) east. With the right of entry on the aforesaid land for the purpose of working up and removing said cypress timber, and the party of the second part shall pay the state and county taxes on the aforesaid land as long as the cypress timber remains thereon.

'To have and to hold said cypress timber, with the appurtenances, to the said party of the second part, her heirs and assigns forever. And the said parties of the first part do hereby bind themselves and their heirs, executors and administrators to warrant and forever defend the title to said cypress timber unto the said party of the second part, her heirs and assigns, against the said parties of the first part and their heirs, executors and administrators, and against all persons whomsoever lawfully or equitably claiming or to claim the same.'

The bill was demurred to by the several defendants, and the demurrers were, upon hearings thereon, overruled by the circuit judge. Thereafter an answer was filed by the defendants Cummer Company, a corporation, Arthur G. Cummer, and Waldo E. Cummer, to certain portions of which exceptions were filed, which exceptions upon a hearing were sustained by the chancellor, and from the orders overruling the demurrers to the bill and sustaining the exceptions to the answer this appeal was taken.

The errors assigned are the orders that are appealed from.

The grounds of the demurrers are in substance, as follows: (1) That the conveyance by the complainant contains no prescribed time within which said timber shall be removed, and the conveyance of said timber was not for a limited or circumscribed purpose; (2) that the bill contains no allegations of any prior or contemporaneous parol agreement or understanding between the parties to the deed, nor of such facts or circumstances surrounding the execution of the deed as to warrant a construction thereof other than that called for by the language employed in the deed itself; (3) because it is competent for parties to convey growing timber on land with a perpetual right to the grantee to enter upon the land and cut and remove such timber, that this conveyance was a grant in praesenti for a good and sufficient consideration to said grantee, her heirs and assigns, forever, and the bill contains no allegations which warrant the complainant in applying to a court of equity to relieve them from the legal effect of said conveyance; (4) there is no allegation in said bill that complainants have resided upon, cultivated, or occupied said land or any part thereof, nor that said land is adapted to or may be used for farming or other purposes, nor that said land has any actual or market value apart from the cypress timber thereon; (5) there is no allegation in the bill that complainants have suffered irreparable injury, or any injury whatsoever, by the nonremoval of said timber, or that complainants are now or may in the future suffer loss because of the nonremoval of said bill that the grantee in said deed, or her successors, have failed to pay the taxes on said land, nor that the complainants have been required to pay such taxes; (7) because the deed of complainants is a grant of a perpetual right to enter on said land and remove the timber granted, and the grantor is not entitled to quicken the time for such removal by notice; (8) because if the deed of complainants was not a grant in perpetuity, the mere passage of time alone, in the absence of injury or undue advantage, is not of itself sufficient to terminate the right of the purchaser, and there are no sufficient allegations of facts in the bill to disclose a right in the complainant to invoke the jurisdiction of the court for the purposes sought; (9) because the allegations in the bill that it was agreed that the grantee in the deed would remove the...