Gilbert v. Waccamaw Shingle Co, (No. 277.)

• Docket Nº: (No. 277.)
• Citation: 167 N.C. 286, 83 S.E. 337
• Case Date: November 11, 1914
• Court: United States State Supreme Court of North Carolina

83 S.E. 337
167 N.C. 286

GILBERT.
v.
WACCAMAW SHINGLE CO.

(No. 277.)

Supreme Court of North Carolina.

Nov. 11, 1914.

[83 S.E. 337]

1. Contracts (§ 147*)—Evidence (§ 448*)— Written Instruments — Construction — Intent of Parties—Parol Evidence.

In construing a written contract, the intent of the parties, as embodied in the entire instrument, should prevail, such intent being ascertained primarily from the language employed; and, when such language clearly expresses the meaning of the parties, it must be given effect, regardless of the results of other means of interpretation.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147;* Evidence, Cent. Dig. §§ 20G6-20S2, 2084; Dec. Dig. § 448.*]

2. Logs and Logging (§ 3*)—Timber Deed-Construction—"Bemove."

A timber deed recited that, in consideration of $600, the grantors conveyed all timber 10 inches or more in diameter 12 inches from the ground, or which should attain such size any time within l0 years from the date of the instrument, together with a perpetual right of way over the land during 20 years to remove the timber or any other timber now or thereafter to be purchased by the grantee on any land or lands other than those mentioned, etc. Held, that the word "remove, " as so used, included the right to cut during the period specified by the usual and ordinary methods of lumbermen in the vicinity; that the 10-year limitation was confined to describing the size of the timber conveyed and specifying the time within which the measurement must be had, the grantee and his assigns being limited to the cutting and removal of the timber only by the 20-year limitation.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*

For other definitions, see Words and Phrases, First and Second Series, Bemove.]

3. Evidence (§ 458*)—Parol Evidence.

Where a timber deed specifically provided for cutting and removal within 20 years, evidence as to what would be a reasonable time within which to cut the timber was properly excluded.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2083; Dec. Dig. 8 458.*]

4. Evidence (§. 461*) — Parol Evidence — | Deeds.

Where a timber deed provided that the grantee should have a right to cut and remove all timber gaining a specified size within 10 years, but should be entitled to 20 years in which to remove the same, evidence that the parties only intended to allow 10 years in which the grantee was to remove the timber was properly excluded.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.*]

5. Appeal and Error (§ 80*)—Judgments Appealable—Nonsuit.

Under the rule that, in the absence of statute, an appeal only lies from a final judgment or one final in its nature, an appeal cannot be taken from an order of nonsuit taken to test an adverse ruling of the trial judge, leaving issuable matter presented and undetermined in the trial court.

[Ed. Note.—For other cases, see Appeal and Error,.Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.*]

Appeal from Superior Court, Brunswick County; Allen, Judge.

Action by W. T. Gilbert against the Waccamaw Shingle Company, for alleged wrongful cutting of timber from plaintiff's property. A nonsuit was ordered, and plaintiff appeals. Appeal dismissed.

Defendant showed a line of deeds purporting to convey to him the timber of certain dimensions on the land, and claimed the right to cut and remove the timber at any time within 20 years from the date of the deeds. It was agreed that the matters in controversy, in so far as determined, were properly made to depend on the correct interpretation of the first deed conveying the timber, same being a deed from W. T. and Anna A. Gilbert to B. W. Gibson, bearing date March, 1903; the rights therein disposed of having passed by mesne conveyance to defendant and being in terms as follows:

"This deed made on this * * * day of March, 1903, by W. T. Gilbert and Anna A. Gilbert, his wife, of the state and county aforesaid, of the first part, and B. W. Gibson, of the state aforesaid and the county of New Hanover, of the second part, witnesseth: That said parties of the first part, and for the consideration of $600 to them paid by B. W. Gibson, the receipt of which is hereby acknowledged, have...