French v. Sparrow-Kroll Lumber Co.

• Decision Date: 12 January 1904
• Court: Michigan Supreme Court
• Parties: FRENCH v. SPARROW-KROLL LUMBER CO.

97 N.W. 961

135 Mich. 424

FRENCH v. SPARROW-KROLL LUMBER CO.

Supreme Court of Michigan

January 12, 1904

Appeal from Circuit Court, Houghton County, in Chancery; Albert T Streeter, Judge.

Action by William D. French against the Sparrow-Kroll Lumber Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Ball & Ball, for appellant.

Chadbourne & Rees (Benton Hanchett, of counsel) for appellee.

CARPENTER J.

On June 5, 1893, complainant, being the owner in fee of the northwest quarter of section 17, township 47 north, range 36 west, by a warranty deed conveyed to F. H. Begole, of Marquette, Mich 'all the pine timber situated and being' upon said land. By said conveyance said Begole, his heirs or assigns were granted 'eight years in which to remove said pine timber,' and complainant expressly reserved 'all pine timber standing and being upon the premises * * * at the expiration of eight years from the date hereof.' January 26, 1894, said Begole sold and conveyed said pine timber to Edward W. Sparrow, of Lansing, Mich., who subsequently conveyed the same to the defendant. On the 1st day of October, 1894, complainant conveyed the east half of the quarter section of land above described to one Joseph I Foot. Said deed contained this exception, 'Excepting a flew, or what pine timber there may be thereon, which was sold to F. H. Begole, of Marquette, Michigan.' Said Foot conveyed to his wife, and she, on the 7th of December, 1900, conveyed said land to the defendant. On the 28th of July, 1896, complainant conveyed the west half of siad land to one William E. Brimhall. Said deed contained this exception: 'Excepting, however, from this conveyance, certain pine trees now standing on said land.' Brimhall subsequently conveyed said land to his wife, and she, on the 25th of February, 1901, conveyed the same to the defendant. Though the eight years given Begole, his heirs and assigns, to cut and remove said timber, expired on the 5th of July, 1901, said timber still stands on said land uncut, and both complainant and defendant claim the ownership of the same by reason of the foregoing facts. The land in question is wild and unoccupied, and is not in the actual possession of either of the parties. Complainant commenced this suit in chancery, stating in his bill the foregoing facts, alleging that the claim of defendant tends to greatly depreciate the value of said pine timber and to interfere with its sale, and praying that his title may be forever quieted, and the defendant decreed to release all its pretended claims to the ownership of said timber. Defendant demurred to the bill on several grounds, of which we have occasion to consider but one, viz., that complainant has no title to the standing timber. The demurrer was sustained, and a decree made dismissing complainant's bill.

Does complainant own the standing timber? As the deeds of the land conveyed everything not excepted, this question will be answered by a proper construction of the exception. As the exception in the two deeds is expressed in different language, each will demand separate construction.

The deed to Foot: By this deed complainant conveyed his entire interest in the land, 'excepting a fiew, or what pine timber there may be thereon, which was sold to F. H. Begole of Marquette, Michigan.' What is the proper construction of this exception? The case of Strasson v. Montgomery, 32 Wis. 52, is very nearly in point. There one Gleason, who owned the fee, conveyed to one White 'all the trees and timber of every kind growing and being upon said premises,' with the proviso that White should take off the trees and timber within four years. Gleason then conveyed the land to the plaintiff, 'excepting and reserving a certain amount of timber heretofore sold to Elias N. White.' It was held that the plaintiff acquired by his deed the title to the timber not removed by White within the four years. We quote from that opinion: 'Whether the plaintiff was entitled to recover depends upon the construction which is given to the conveyance of the timber by Gleason to White and the exception or reservation in the deed to the plaintiff. The former conveyance was of all the trees and timber on the premises, with the proviso that White should take the same off within four years, or by December 4, 1870. It is well settled on principle and by authority that the legal effect of this instrument is that Gleason thereby conveyed to White all the trees and timber on the premises, which White should remove therefrom within the prescribed time, and that such as remained thereon after that time should belong to Gleason, or to his grantee of the premises. * * * Having thus ascertained what Gleason conveyed to White, we are next called upon to determine the legal effect of the exception or reservation in the deed to the plaintiff. The language is, 'Excepting and reserving a certain amount of timber heretofore sold to Elias N. White.' But we have already seen that the timber sold to White was only such as he should take off the premises by December 4, 1870. Hence the timber remaining on the premises after that date is not included in the above language, and is not excepted or reserved at all, unless * * *.' The court then proceeded to discuss an alternative not material to the case at bar. We do not think the facts in the above case differ essentially from those in the case at bar, and if we could approve the reasoning in that case it would clearly lead to an affirmance of the decree of the court below. We do not think, however, that we can approve that reasoning. We cannot say that the legal effect of the conveyance to Begole was to convey the trees and timber on the premises which he should remove therefrom within the prescribed time. We think, under our decisions, we are bound to say that Begole obtained a title in praesenti in all the standing pine timber; a title which, it is true, would terminate at the end of eight years. Hodges v. Buell (Mich.) 95 N.W. 1078, and authorities therein cited. At the time the deed to Foot was executed, therefore, both complainant and Begole had an interest in all the standing pine, and therefore, in a strict legal...