Franke v. Welch

• Decision Date: 10 September 1969
• Citation: 254 Or. 149,458 P.2d 441
• Parties: Milo FRANKE and Evelyn Franke, husband and wife, Clarence Franke and LaVerne Franke, husband and wife, Appellants, v. J. D. WELCH, Jr., Harry C. Welch, Elwood C. Welch, Oscar H. welch, T. L. Nye and John Jarvi, a partnership dba Blue Mountain Mills; John Hudspeth and Floreine Hudspeth, husband and wife, Fred Hudspeth and Margaret Hudspeth, husband and wife, dba Hudspeth Sawmill Co., Respondents. Lester WILSON and Nan Wilson, husband and wife, Appellants, v. J. D. WELCH, Jr., Harry C. Welch, Elwood C. Welch, Oscar H. Welch, T. L. Nye and John Jarvi, a partnership dba Blue Mountain Mills; John Hudspeth and Floreine Hudspeth, husband and wife, Fred Hudspeth and Margaret Hudspeth, husband and wife, dba Hudspeth Sawmill Co., Respondents.
• Court: Oregon Supreme Court

Page 441

458 P.2d 441

254 Or. 149

Milo FRANKE and Evelyn Franke, husband and wife, Clarence

Franke and LaVerne Franke, husband and wife, Appellants, v. J. D. WELCH, Jr., Harry C. Welch, Elwood C. Welch, Oscar H.

welch, T. L. Nye and John Jarvi, a partnership dba Blue

Mountain Mills; John Hudspeth and Floreine Hudspeth, husband

and wife, Fred Hudspeth and Margaret Hudspeth, husband and

wife, dba Hudspeth Sawmill Co., Respondents.

Lester WILSON and Nan Wilson, husband and wife, Appellants, v. J. D. WELCH, Jr., Harry C. Welch, Elwood C. Welch, Oscar H.

Welch, T. L. Nye and John Jarvi, a partnership dba Blue

Mountain Mills; John Hudspeth and Floreine Hudspeth, husband

and wife, Fred Hudspeth and Margaret Hudspeth, husband and

wife, dba Hudspeth Sawmill Co., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton May 5, 1969.

Decided Sept. 10, 1969.

Claud A. Ingram, John Day, argued the cause and filed briefs for appellants.

William A. Palmer, Portland, argued the cause for respondents. With him on the brief were Casey, Palmer & Feltz, Portland, and James F. Bodie and Bodie, Minturn & Glantz, Prineville.

Before McALLISTER, P.J., and SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

This is a suit to quiet title to certain lands conveyed to plaintiffs by defendants Welch and others. Plaintiffs appeal from a decree in favor of defendants.

On July 1, 1946 the Blue Mountain Mills partnership conveyed certain lands to the predecessors in title of plaintiffs Franke and on February 14, 1947 conveyed other lands to the predecessor in title of plaintiffs Wilson. Each deed, after describing the land, contained the following clause: 'Save and except all timber growing, grown or to be grown thereon.'

In 1948 the partners of Blue Mountain Mills formed a corporation named Blue Mountain Land Company and transferred to the corporation all of the timber, timberlands and cutting contracts owned by the partnership. The capital stock of the corporation was later acquired by Hudspeth Sawmill Company. Blue Mountain Land Company was dissolved and its assets were distributed to Hudspeth Sawmill Company. When Hudspeth Sawmill Company indicated its intention to start logging operations on the land in question plaintiffs brought the present suit to quiet title.

Plaintiffs contend that the reservation of 'all timber growing, grown or to be grown' operates only to reserve to the grantors 'merchantable timber existing at the time of the execution of the deed with a right to remove the same within a reasonable time together with the growth during that reasonable time for removal.' Defendants contend and the trial court held that the deed reserved to the grantors a perpetual right in the timber.

There is nothing to preclude an owner of timberland from conveying or reserving all of his interest in the timber separate from the land. Whatever the timber interest is called, it may be held separately and as completely as an interest in the soil itself. ¹ However, because the use and value of the land is ordinarily affected by the creation of a separate interest in the timber the courts have found it necessary to take this into account in the interpretation of instruments creating such separate interests. It is for this reason that where timber is conveyed and no period of time for the removal of the timber is specified a reasonable time for removal will be implied. ² This rule of construction is based upon the assumption that ordinarily the owner of the land would not intend to encumber his land beyond a reasonable time by the creation of the separate timber interest. But the owner may, if he desires, create in his transferee or reserve to himself a 'perpetual' right of removal if his intention to do so is manifested. Thus the courts have recognized perpetual easements created as a part of the conveyance of the merchantable timber existing at the time of the sale. ³ If his intention is manifested, the landowner can create not only the 'perpetual' right to remove timber existing at the time of the sale but also a 'perpetual' interest (in the sense of the totality of his interest) in all of the timber that will ever be grown on his land with the concomitant right of removal. ⁴ Because the creation of an unlimited interest in all existing timber and all the timber to grow in the future severely curtails the use of the soil itself and greatly diminishes its value, the intention to create such an extensive timber interest must be very clearly manifested. ⁵

The question before us is whether the language 'growing, grown or to be grown' in the reservation clause of the deed meets this test of clarity of intention. We hold that it does. That part of the clause which reserves timber 'to be grown' is used in contrast to timber 'growing' or 'grown' and clearly indicates an intent to distinguish between timber in existence at the time of the execution of the deed (i.e., trees which were 'growing' or 'grown') and timber which was not then in existence but which would germinate and come into existence after the execution of the deed (i.e., trees 'to be grown'). We are unable to attribute any other reasonable meaning...