Gilbert v. Waccamaw Shingle Co.

• Decision Date: 11 November 1914
• Docket Number: 277.
• Citation: 83 S.E. 337,167 N.C. 286
• Parties: GILBERT v. WACCAMAW SHINGLE CO.
• Court: North Carolina Supreme Court

83 S.E. 337

167 N.C. 286

GILBERT v. WACCAMAW SHINGLE CO.

No. 277.

Supreme Court of North Carolina

November 11, 1914

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.

Deed construed as to time given for removal of timber.

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 R. 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 R. 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 R W. Gibson, the receipt of which is hereby acknowledged have bargained and sold, and by these presents bargain, sell and convey to the said R. W. Gibson and his heirs all oak, poplar, maple, spruce, pine and other timber, both standing and fallen, of the dimensions of 10 inches or more in diameter at a distance of 12 inches from the ground, or which shall attain such size any time within the period of 10 years from the date of this instrument, except, however, all long leaf boxed timber upon the following described lot or tract of land, situate, lying and being in the county and state aforesaid and described as follows: [Here follows description of land by metes and bounds, which is not in dispute]. * * * Together with the perpetual right of way in, to, through and over the above-mentioned tract or parcel of land at any and all times during the term of 20 years, for men, teams and vehicles, and the right to build, erect, construct, maintain and operate railroads, tramways, and cartways, upon and across the said land for the purpose of removing the above-mentioned timber or any other timber now or to be hereafter purchased by the said parties of the second part upon any land or lands other than the above mentioned, with the full rights to use such small brush and timber as might be necessary to build, maintain and operate the said railroads, tramways and cartways, free of all charge."

It was admitted that defendant had cut and removed some of the timber after 10 years and within 20 years from the date of the instrument. The court, being of opinion that under the deed in question, and as a matter of law, the defendant had 20 years from the date of the instrument within which to cut and remove the timber, excluded evidence offered by plaintiff tending to show what was a reasonable time to cut and remove the timber, and also evidence offered by way of aiding to the interpretation of this deed; that the understanding and agreement of the parties was that the timber should be cut and removed in the 10 years, and thereupon plaintiffs submitted to a nonsuit and appealed.

In reference to this order of nonsuit, it appeared that there were two other actions pending on the docket involving the construction of this deed, and the course indicated was adopted with consent of all parties on the interest of time and in order to obtain the opinion of the Supreme Court that the causes might be correctly tried; the question of alleged trespass, by reason of wrongful cutting of timber below the sizes specified and conveyed in the instrument, being reserved.

E. K. Bryan, of Wilmington, and Cranmer & Davis, of Southport, for appellant.

C. Ed. Taylor, of Southport, for appellee.

HOKE J.

It is the accepted rule of construction in this and other written contracts that the intent of the parties, as embodied in the entire instrument, should prevail, and that each and every part shall be given effect, if it can be done by fair and reasonable intendment, and that, in ascertaining this intent resort should be had, primarily, to the language they have employed, and, where this language expresses plainly, clearly, and distinctly the meaning of the parties, it must be given effect by the courts, and other means of interpretation are not permissible. McCallum v. McCallum, 83 S.E. 250 (at the present term); Kearney v. Vann, 154 N.C. 311, 70 S.E....