Hardison v. Dennis Simmons Lumber Co

• Decision Date: 11 October 1904
• Court: North Carolina Supreme Court
• Parties: HARDISON v. DENNIS SIMMONS LUMBER CO.

48 S.E. 588

136 N.C. 173

HARDISON

v.DENNIS SIMMONS LUMBER CO.

Supreme Court of North Carolina.

Oct. 11, 1904.

SALE OF STANDING TIMBER —CONTRACT— CONSTRUCTION.

1. A contract for the sale of timber above the size of 12 inches in diameter requires a measurement from outside to outside, bark included, in the absence of evidence of any local or general custom giving those words a different meaning.

2. Under a contract for the sale of standing timber, giving the purchaser 15 years within which to cut and remove the same, the cutting need not be continuous.

3. Under a contract for the sale of all the pine timber on plaintiff's land of and above the size of 12 inches in diameter when cut, with the term of 15 years in which to cut and remove the same, the purchaser is entitled to cut trees that attain that size within the term.

Appeal from Superior Court, Martin County; Moore, Judge.

Action by W. A. Hardison against the Dennis Simmons Lumber Company for damages for cutting timber from plaintiff's land. Judgment for defendant, and plaintiff appeals. Affirmed.

Small & McLean, for appellant

H. W. Stubbs, for appellee.

CLARK, C. J. On September 5, 1891, plaintiff conveyed to the Greenleaf-Johnson Company, in consideration of $65, "all the pine timber of and above the size of twelve Inches in diameter on the stump when cut in and upon" a certain tract of land, with the term of 15 years within which to cut and remove the same. Thereupon said company entered and cut a part of the timber which measured 12 inches and over, but left some of that size standing. In June, 1902, the Greenleaf-Johnson Company conveyed its interest and estate under said deed to defendant company, which again entered upon the land and cut and removed such timber as had been left by the Greenleaf-Johnson Company, and also cut and removed all of the trees which had attained the size of 12 inches, constructing and operating a railroad upon plaintiff's land for that purpose. As Is alleged in the complaint, and not denied, these several acts on the part of defendant were committed after the same had been forbidden by plaintiff. Three questions are presented for consideration, to wit: (1) In determining the measurement, shall the 12 inches be computed from outside of bark to outside, or from inside to inside? (2) If, when the tract is once cut over, and there are left standing trees of the required size, can the grantee enter again at any time during the period of the lease for the purpose of cutting and removing them? (3) If, when the tract is cut over once, and all the trees of the dimensions of 12 inches in diameter and over at the stump are cut and removed, can the grantee enter again at any time during the period of the lease for the purpose of cutting and removing such trees as may have attained the required size between the time of the first and second cuttings?

As to the first proposition, the natural meaning of the words "twelve inches in diameter, " applied to standing trees, would be measurement from outside to outside, bark included. Few things are "closer than the bark to the tree." The construction we place upon the words...