Goodson v. Stewart

• Decision Date: 09 April 1908
• Citation: 46 So. 239,154 Ala. 660
• Parties: GOODSON v. STEWART ET AL.
• Court: Alabama Supreme Court

46 So. 239

154 Ala. 660

GOODSON v. STEWART ET AL.

Supreme Court of Alabama

April 9, 1908

Appeal from Circuit Court, Autauga County; S. L. Brewer, Judge.

Action by Thomas R. Goodson against Irenus Stewart and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

See 42 So. 1018.

Gunter & Gunter and C. E. O. Timmerman, for appellant.

McCLELLAN J.

The complaint charges trespass on lands. The defense asserted was that the defendants were entitled to the timber cut from the lands described under mesne conveyances of the timber interest, and for that purpose had the right to enter. The source of their asserted title was one Pierce, who in 1855 conveyed to the Smiths, predecessors in part in title of the defendants, and their heirs and assigns, "all the pine timber for the use of their sawmills, to be sawed up or to be used in any other way that is now (italics supplied) upon the following described lands"--those, with others described in the complaint. It has been settled in this state that a conveyance of standing timber is a transmission of an interest in the land supporting it. Rothschild v. Bay City Lumber Co., 139 Ala. 571, 36 So. 785, and authorities there cited. And it has also become the subject of well-considered adjudication by this court that where, in the conveyance of the timber interest, no stipulation with respect to the time within which entry shall be made and the timber removed is provided, a reasonable time only is open to the timber owner to enter upon the premises and to remove it. Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala 465, 16 So. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73. What is a reasonable time has received, in Heflin v Bingham, 56 Ala. 575, 28 Am. Rep. 776, attention, and the general rule there announced must be taken as sound. However, in the case at bar, the severance of the timber interest from the freehold was accomplished in 1855, and the trespass complained of occurred in 1906, 51 years after the severance. We feel no hesitancy in declaring that period wholly unreasonable for the entry and removal of the timber, if any of the character conveyed there was still standing in 1906; and hence the defendants cannot find justification for their delayed entry under the paper title produced.

This record presents no matter out of which a possible estoppel to assert a failure to enter and remove the timber within a reasonable time might arise. So a consideration of that inquiry is not invited or undertaken. While the right...