Hall v. Eastman, Gardiner & Co.

• Decision Date: 21 January 1907
• Citation: 43 So. 2,89 Miss. 588
• Parties: BUD HALL, ET AL., v. EASTMAN, GARDINER & CO
• Court: Mississippi Supreme Court

43 So. 2

89 Miss. 588

BUD HALL, ET AL., v. EASTMAN, GARDINER & CO

Supreme Court of Mississippi

January 21, 1907

November 1906

FROM the chancery court of Simpson county, HON. JAMES L MCCASKILL, Chancellor.

Hall and others, the appellants, were complainants in the court below; Eastman, Gardiner & Company, a corporation, the appellee, was defendant there. From a decree sustaining a demurrer to the bill and dismissing the suit complainants appealed to the supreme court.

The bill of complaint charged that complainants were the owners of certain lands described therein, and more than five years before executed a deed conveying to defendant the timber standing thereon. The deed is set out in the opinion. The bill further charged that defendant had taken no steps toward cutting or removing the timber from the land; that complainants desired to put the premises in cultivation, but could not do so because of the timber standing thereon, and because of the refusal of defendant to remove it. Defendant claimed an unlimited time in which to remove the timber. Complainants claimed that, since no time limit was fixed in the deed for the removal of the timber, defendant should remove same within a reasonable time from the date of the conveyance or forfeit its rights; that a reasonable time had elapsed; and that defendant's timber rights had reverted to complainants. The bill prayed for a cancellation of defendant's claim to the timber, or, in the alternative that the court should fix a time in the future within which the timber should be removed.

Decree reversed, demurrer overruled, and cause remanded.

Longino Willing & Wilson, for appellants.

The overwhelming weight of authority supports the proposition that when a time limit is fixed in a deed within which the timber must be removed, all timber remaining on the land at the expiration of the time limit reverts to the grantors. In McComber v. Detroit, etc., R. R. Co., 108 Mich. 491 the court held that, "If a landowner sells the timber on his land, to be removed within a time specified, and the timber remains uncut after the expiration of that time, it reverts to the owner of the realty, but the timber which is cut within that time becomes the personal property of the licensee and remains such, though it is not removed from the land within the time agreed upon. Contracts containing similar provisions have been construed in the courts in a number of the states, and the weight of authority supports the defendant's contention that, as to timber remaining uncut at the expiration of the time limit under a contract, such as this, the title reverts to the owner of the realty. Pease v. Gibson, 6 Me., 84; Howard v. Lincoln, 13 Me. 123; Saltonstall v. Little, 90 Pa. 422 (35 Am. Rep., 683); Utley v. Wilcox, 59 Mich. 263; Haskell v. Ayres, 32 Mich. 93 (35 Mich. 89); Gamble v. Gates, 92 Mich. 510." In Pease v. Gibson, 6 Me., 81, the court held that, "Where the owner of land sold by deed all the timber trees standing thereon, and in the same deed gave to the vendee two years within which to take off the timber, this was a sale of only so much of the timber as the vendee might take off in the two years, and that an entry by him after the period was a trespass; and although after the expiration of the two years the land was sold to a stranger with a reservation in the deed of whatever rights the vendee of the timber might have, yet this reservation neither gave any new effect to the contract nor to any new license to the vendee."

In Howard v. Lincoln, 13 Me. 122, the court held that: "A sale of a certain description of standing timber trees, to be taken off within a specified time, was a sale only of so many of the trees specified as the vendee might take off in the time limited." In Utley v. Wilcox Lumber Co., 59 Mich. 263, the court held as follows: "An agreement for removal within a fixed time limits operation of contract to timber cut and removed within the time specified." Upon a review of the contract in this case under which the plaintiff claimed the right to recover, and the acts of the parties in connection therewith, the court held that: "It clearly appears that it was the intention of the parties to said contract to limit the time in which the timber sold plaintiff was to be cut and removed, and that the sale was confined to such timber as he should cut and remove within the specified time. That the case comes directly within the previous decision of this court, and is ruled by said cases: Monroe v. Bowen, 25 Mich. 523; Richards v. Tozer, 27 Mich. 451; Johnson v. Monroe, 28 Mich. 3; Haskell v. Ayres, 32 Mich. 93.

In Haskell v. Ayres, 32 Mich. 93, the court held that: "A contract for the sale of all the pine timber on certain lands specified, at a given price per thousand feet, to be removed within three years from the date of the contract, conferred no authority to cut and remove the same after the expiration of the time specified, and conveyed no title to logs thereon, cut on said lands by third person." To the same effect, the court held in Gamble v. Gates, 92 Mich. 510, that: "A contract for the sale of all the white pine and Norway timber standing, lying or being on certain land, reserved the title in the vendor until the purchase price was paid, and gave the vendee five years in which to cut and remove the timber, and provided that whatever timber remained upon the land after the limit of the aforesaid five years should revert and become the property of the vendor, and even if the conditions of the contract had otherwise been performed, all the timber remaining upon the land at the expiration of the five years, whether cut or uncut, reverted to the vendor." In Pease v. Gibson, 6 Me., 84, above referred to, the court said: "To admit the construction given by the defendant's counsel and consider such a permission as a sale of the trees, to be cut and carried away at the good pleasure of the purchaser, and without any reference to the limitation in point of time, specified in the permit, would be highly injurious in its consequences. It would deprive the owner of the land of the privilege of cultivating it and rendering it productive, thus occasioning public inconvenience and injury; and, in fact, it would amount to an indefinite permission. The purchaser, on this principal, might, by gradually cutting the trees and clearing them away, make room for a succeeding growth, and before he had removed the trees standing on the land at the time of receiving such a license or sale, others would grow to a sufficient size to be useful and valuable; and then the owner of the land would be completely deprived of all use of it. Principals leading to such consequences as we have mentioned cannot receive the sanction of the court." This was followed in Howard v. Lincoln, 13 Me. 122, both cases seeming to have directly involved in point.

In Holton v. Goodrich, 36 Vt. 18, there was a reservation of stone in a deed, with the privilege of taking it off "till" a certain day. The court said: "If the property was removed by that time, it belonged to the plaintiffs, but if not removed by. that time, their right to it was gone. This seems to be the natural and obvious construction of the deed." See also note by the Reporter in Irons v. Webb, 32 Am. Rep., 193. In Saltonstall v. Little, 90 Penn., 422. "K. conveyed to V. several tracts of land, reserving all the pine timber on said tracts, together with the privilege to cut, remove, take and carry away the same, on any part thereof, at any and all times; also the right of ingress and egress at any and all times for the space or term of twelve years from the date above written, for the purpose as aforesaid." Held, that the parties having fixed their own time for the removal of the timber, the right of entry, as well as the right to property, fell with the expiration of that time. The limit upon the right to enter was a limitation upon the exception itself. It was a reservation of the timber for twelve years, and no longer. After that time the trees remaining passed with the grant of the soil to which they were attached.

Where no time limit is fixed for the removal of timber, the timber must be removed within a reasonable time. In Holt v. Stratton Mills, 54 N.H. 109 (20 Am. Rep., 119), the owner of land conveyed the timber standing and lying thereon with license to the grantee to enter and remove the same. Held: That the grantee might enter within a reasonable time, but that if he did so afterwards, he was liable to trespass quare clausum for the entry, but not for the value of the trees. In Heflin v. Bingham, 56 Ala. 566 (28 Am. Rep., 776), Cook conveyed lands to Heflin, reserving the growing trees. He had previously orally sold the trees to Bingham, and received the purchase money therefor. Bingham entered upon the lands and erected buildings for the purpose of converting the trees into lumber, and was engaged in that business when Heflin purchased. In ejectment by Heflin against Bingham, held that "Bingham had the right, within a reasonable time after the sale of the trees to him, to enter upon the land and cut and remove them, but not to erect or occupy any buildings upon the land."

In the case of Ferguson v. Arthur, 128 Mich. 297, no limit was fixed for the removal of timber. In this case the court held that the written contract being silent as to the time for the removal of the timber, the law implied that the grantee had a reasonable time only within which to remove the timber. Mathews v. Mulvey, 38 Minn. 342; Howe v. Batchelder, 49 N.H. 204.

In the case of Mathews v. Mulvey, the court very pertinently said "When the right should expire the particular effect would be to divest the right in the timber, or at any rate to leave it a barren and...