France v. Deep River Logging Co.

• Decision Date: 28 April 1914
• Docket Number: 11,706.
• Citation: 79 Wash. 336,140 P. 361
• Parties: FRANCE et al. v. DEEP RIVER LOGGING CO.
• Court: Washington Supreme Court

140 P. 361

79 Wash. 336

FRANCE et al. v. DEEP RIVER LOGGING CO.

No. 11,706.

Supreme Court of Washington

April 28, 1914

Department 2. Appeal from Superior Court, Pacific County; Edward H Wright, Judge.

Action by E. L. France and others against the Deep River Logging Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Coovert & Mannix, of Portland, Or., and Bond &amp Eddy, of South Bend, for appellant.

Welsh &amp Welsh, of South Bend, and Abel & Burnett, of Montesano, for respondents.

PARKER J.

The plaintiffs, claiming to be the owners of a tract of land in Pacific county, commenced this action in the superior court for that county, seeking recovery of damages from the defendant for cutting and removing timber therefrom. A trial before the court without a jury resulted in findings and judgment in favor of the plaintiffs for $9,000 damages, from which the defendant has appealed.

The real controversy is over the title to the timber upon the land. Appellant claims title to the timber through conveyance thereof from William J. Dyer, the original patentee of the land, while respondents claim title to both the land and the timber through a tax foreclosure and deed thereunder, issued to them by the treasurer of Pacific county some two years before the removal of the timber by appellant.

On November 16, 1892, William J. Dyer, by deed duly executed and acknowledged, conveyed the timber upon the land, with the right of entry and removal, to G. H. Mooers; the granting language of the conveyance being as follows: 'By these presents do grant, bargain, sell, and convey unto said G. H Mooers, his heirs, personal representatives, and assigns, all timber and trees (inclusive of both standing trees and fallen trees) upon the south half of the southeast quarter and the south half of the southwest quarter of section 30, in township 11 north of range 8 west of the Willamette meridian, in Pacific county, state of Washington, and the right of entering upon said land and removing said timber and trees from the same at the pleasure of said grantee, his heirs, personal representatives, and assigns, and of doing all things necessary to log or remove said timber without unreasonable damage to said land. To have and to hold the said granted property and privileges to the said G. H. Mooers, his heirs, personal representatives, and assigns, forever.' On July 1, 1902, Mooers conveyed this same timber, with the right of entry and removal, to the Deep River Logging Company, appellant, using this same language in the granting portion of the conveyance. Both of these conveyances were duly recorded in the office of the auditor of Pacific county soon after their execution as deeds to real property.

In July, 1907, respondents, having become the owners of the lien charged against the land for general taxes in the years 1902 and subsequent years, evidenced by certificate of delinquency and tax receipts, commenced foreclosure of their lien in the superior court for Pacific county against William J. Dyer and Deep River Logging Company. Thereafter such proceedings were had in that foreclosure action that judgment and order of sale of the land was rendered therein, sale of the land in pursuance thereof was made at which the respondents became the purchaser thereof, and a tax deed was accordingly issued to respondents by the treasurer of Pacific county on December 19, 1907. The land and the timber thereon had not been assessed or taxed separately at any time prior to the time of respondens' tax foreclosure; the whole being assessed together as real property. Appellant never requested that the timber upon the land be assessed separately from the land, nor did appellant ever make any return of the timber upon the land as personal property to the assessor of Pacific county, nor did appellant ever pay any taxes thereon in any form, though it did make return of and pay taxes upon personal property owned by it in Pacific county. During the months of July, 1910, to April, 1911, inclusive, appellant went upon the land, and cut and removed therefrom standing timber of the value of $9,000, for which damages in that sum were awarded to respondents by the judgment in this action, as we have stated. Other facts will be noticed as may become necessary in connection with our discussion of appellant's several contentions.

Counsel for appellant first contended that respondents' tax deed did not convey to them the title to the timber upon the land, because the timber was constructively severed from the land and became personal property by the conveyance by Dyer to Mooers in 1892. Prior to the act of 1907 (Rem. & Bal. Code, § 9095), which became the law long after the assessment and levy of the taxes upon which respondents' foreclosure and deed rests, we had no statute law touching the question of standing timber being real or personal property for purposes of assessment and taxation when separately owned. It is elementary law that standing timber is real property--as much so as the land on which it stands--when the title to both the timber and the land is vested in one ownership.

It may now be regarded as the settled law of this state, in harmony with the decided weight of authority elsewhere, that conveyance of standing timber, with the right of entry upon the land and removal of the timber therefrom in the future, whether the time of removal be measured by stated or reasonable time, is within our statute requiring conveyances of real estate or any interest therein to be by deed. Rem. & Bal. Code, §§ 8745, 8746; Seymour v. La Furgey, 47 Wash. 450, 92 P. 267; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Engleson v. Port Crescent Shingle Co., 74 Wash. 424, 133 P. 1030, 20 Cyc. 212; Ives v. Atlantic, etc., R. Co., 142 N.C. 131, 55 S.E. 74, 115 Am. St. Rep. 732. See note to this case in 9 Ann. Cas. 192. It is plain, therefore, that the timber here involved was, in any event, real property until conveyed by Dyer to Mooers in 1892, and that its conversion into personal property depends entirely upon the effect of that conveyance. Manifestly the timber did not become personal property, unless it became such by virtue of that conveyance. The conveyance by Mooers to appellant thereafter had no effect upon this question.

There have been two decisions rendered by this court which may seem to have some bearing upon this question. In Brodack v. Morsbach, 38 Wash. 72, 80 P. 275, there was under consideration a duly executed and acknowledged written contract for the sale of standing timber. Some contention was there apparently made that the contract did not in form amount to a conveyance; but, it having recited full payment of the consideration, it was held by the court to be in effect a conveyance of the timber, carrying an implied license to remove it from the land. A subsequent purchaser of the land had actual notice of the conveyance of the timber, and was held not to have acquired the timber with the land; this being the main question involved. In a per curiam opinion so holding, this court, among other things, said: 'Conceding that the sale of the growing timber was a sale of an interest in the land, upon the execution and delivery of the contract of sale, the timber became personal property, and the only interest the defendants had, or could claim, in the land upon which the timber stood, was an implied license to enter and remove the timber.' Brodack v. Morsbach, 38 Wash. 72, 80 P. 275. The court expressly refrained from determining the question of time limitation against the removal of the timber, as not being involved in the case. A review of that case, we think, renders it plain that the court's decision would have been the same, regardless of whether or not the timber became personal property by the conveyance there involved, and that that question was wholly unnecessary to be decided in disposing of the case as the court did.

In the recent case of Engleson v. Port Crescent Shingle Co., 74 Wash. 424, 133 P. 1030, we had under consideration a situation leading to a decision in substance somewhat inconsistent with the remarks of the court above quoted from the Brodack Case. The action was to recover compensation for services rendered in effecting a sale of standing timber. Recovery was denied by this court on the ground that there was no contract for such service evidenced in writing, as required by section 5289, Rem. & Bal. Code, rendering void, if not evidenced in writing, 'any agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission.' The standing timber involved in that case was in part upon lands owned by appellant and in part upon lands owned by third persons who had sold the timber thereon to appellant; appellant being the defendant in the action, from whom commission upon the sale of the timber was sought to be recovered. The decision in that case was, in effect, a holding that no part of the commission could be recovered, notwithstanding a portion of the timber sold by the plaintiff, claiming commission, was owned by the defendant separate from the ownership of the land by another. It would seem that, if appellant's contention in the case before us be well grounded, the plaintiff in the Engleson Case would have been entitled to recover upon the oral contract, so far as he was entitled to commission for the sale of the portion of the defendant's timber owned by him separate from the land. The question, however, does not seem to have been presented for consideration in that case, yet the question comes as near being in the case as it was in the Brodack Case. We conclude that neither of these decisions should be regarded as controlling authority upon this question. This leaves us without any...