Hodges v. Buell

• Decision Date: 14 July 1903
• Citation: 134 Mich. 162,95 N.W. 1078
• Court: Michigan Supreme Court
• Parties: HODGES v. BUELL et al.

95 N.W. 1078

134 Mich. 162

HODGES v. BUELL et al.

Supreme Court of Michigan

July 14, 1903

Appeal from Circuit Court, Cheboygan County, in Chancery; Frank Shepherd, Judge.

Bill by James L. Hodges against Frank Duell and another. Decree for complainant. Defendants appeal. Reversed.

W. L Townsend, for appellants.

Frost &amp Sprague, for appellee.

HOOKER C.J.

This is an injunction bill filed to restrain the defendants from removing certain timber, cut and uncut, from a parcel of land which they had sold and deeded to the complainant. The complainant's deed was dated October 11, 1899, and was delivered November 11, 1901. It contained a reservation as follows 'First party reserves all saw timber on said land, with right to enter upon and remove same within two years also right to build roads across and cross said land within two years from date.' On or after November 12, 1901, the defendants cut and manufactured saw logs from standing and down timber, some of the latter being windfalls, and some being timber previously felled and stripped of its bark by them. Complainant notified defendants' foreman to desist on November 15th, and filed this bill on November 27th, when further cutting and removal was stopped by a preliminary injunction. Upon the hearing, the circuit judge determined that all of the rights of the defendants in the timber, then being a part of the realty, ceased on October 11, 1901, but that 68 hemlock logs, which had been manufactured by the defendants previous to said 11th day of October, 1901, had become their personal property, which they had a right to remove, and that the remainder of the timber, down as well as uncut, belonged to the complainant, and, as defendants had been permitted to remove and dispose of such of said timber as was down, upon giving a bond to pay for the same, should it be adjudged to belong to the complainant, the decree determined the quantities as follows: Hemlock, 29,800 feet; maple, 3,000 feet; beech, 700 feet--all merchantable; and the prices were to be fixed by a circuit court commissioner, as provided in the interlocutory order under which defendants received the same. Defendants were allowed $5 for extra expense caused by delay in removing the timber to which they were adjudged entitled, and the preliminary injunction was made perpetual, except as to the 68 hemlock logs. Complainant was given costs provided by rule. The defendants have appealed.

Similar contracts to this have been before this court several times.

The case of Green v. Bennett, 23 Mich. 468, arose upon a written contract, whereby the owner of the fee of a parcel of land, for a consideration of $600, 'bargained, sold, granted and conveyed to one, his administrators,' etc., 'all the wood and timber,' etc., 'eight acres of said wood and timber to be taken off by May 1, next,' 'ten more by Sept. 1st next,' the remainder 'within one year from Sept. 1, next,' and the grantee was to pile the brush in good order. Both parties signed this contract. The timber was not taken off within the time provided, and some was removed after the grantor forbade it. He afterwards brought trover for the timber so taken. Mr. Justice Christiancy delivered the opinion of the court, and it seems to have been thought that this contract was open to two constructions: (1) That it was an absolute sale of an interest in land, with a covenant to remove within a fixed time, in which case there was no wrongful conversion by the plaintiff, because the property was his own, though he might be liable for the breach of his contract. (2) That the sale was one upon condition, and that in such case the vendee would lose all timber not removed within the period fixed. The court did not determine the question, because it was able to find that upon the latter theory there had been a waiver of the condition, and therefore plaintiff rightly recovered, whatever the construction. Here was an apparent recognition of the rule that, unless the sale was conditional, the title was not divested by reason of the expiration or revocation of the license.

The next case was Monroe v. Bowen, 26 Mich. 524, and this was clearly a reservation upon condition. It read as follows: 'And the saw timber on said land is to be the property of the party of the first part [the plaintiff] if he shall remove the same on or before the first day of April, in the year eighteen hundred and seventy.' This is the only allusion to the timber to be found in the deed, which is in the ordinary form of a full covenant warranty deed. Manifestly it throws no light upon the construction to be given to a writing where a condition can rest merely upon inference, as it was plainly made conditional, as shown by the use of the word 'if,' upon which the right to remove timber depended.

Richards v. Tozer, 27 Mich. 452: From the opinion in this case it is uncertain what the words of reservation were. The court said: 'His right to recover at all, or, which is the same thing, his right to the logs, was rested by him on the passage in the quitclaim deed, and it is very clear that under and by force of that he was only entitled to take logs from the land before the year 1868, and by virtue of it could invest himself with no right to any by taking later.' The original bill of exceptions states the reservation in the following language, viz., 'reserving to Richards one undivided half of the pine timber, with the right to enter upon, cut, and take away the same, at any time before the year 1868, for the consideration of fifty dollars.' It was held that he could not maintain trover without proof that the logs were taken away by him before the time limited. The logs were cut and taken by defendant after the expiration of the time limited.

We see no way of distinguishing the reservation in the present case from the foregoing.

In Johnson v. Moore, 28 Mich. 3, a reservation providing that 'all the sawing pine and whitewood timber that is now upon the above described tracts of land belongs to' the grantor named in such deed, 'who is sole owner thereof,' and that he 'has by agreement, thirty months from this date to remove the same,' was under discussion. It was claimed to be a bare license, revocable at pleasure. The court refused to place such a construction upon it, and held that, whatever it might be called, it conveyed the right to take the timber within 30 months. It is obvious that this case does not imply that such right terminated on the expiration of 30 months, as that question was not considered, nor was it in any way involved.

Haskell v. Ayres, 32 Mich. 93, follows Richards v. Tozer and Johnson v. Moore. The contract was as follows: 'They [plaintiffs] shall have peaceable possession of the aforesaid premises for three years from this date, for all the purposes of removing the aforesaid pine from the aforesaid land, said Ayres, Larned and Wiswall, for and in consideration of the agreement aforesaid, agree * * * that they will remove the aforesaid timber within the next three years.' Whether this was a conveyance upon condition or not, there was a clear covenant, and it was so urged by counsel, citing Clemens v. Conrad, 19 Mich. 179, where it was held that a failure to remove stone from a quarry, reserved, but to taken within three months, did not operate as a forfeiture of the stone reserved. The case is not discussed. It is based on the two cases cited, and really rests on the Tozer Case, as the other is plainly distinguishable, and it is perhaps true that the Tozer Case is also.

In Utley v. Wilcox Co., 59 Mich. 268, 26 N.W. 488, the court said: 'Utley agreed to cut and put in all the logs upon the land, of twelve inches in diameter and upwards, in time for the drive of 1879, and Wilcox is to retain, out of the purchase price of the logs sold to Torrent & Ducey, 'fifteen hundred dollars, in full payment for all such pine saw logs as he may cut and remove from said land within one year from this date,' i. e., from November 14, 1878. From all the contracts and acts of the parties in connection therewith, the intention clearly appears to limit the time in which the timber on the sections named should be cut and removed, and that the sale was confined to such timber as should be cut and removed within the specified time.' This contract is clearly and expressly limited to logs which should be seasonably cut and removed.

In the case of Wait v. Baldwin, 60 Mich. 626, 27 N.W. 697 1 Am. St. Rep. 551, no period was fixed for removal of the timber reserved, and the grantee's title was sustained. The case contains a dictum that, in cases where the timber sold is to be removed within a fixed time, 'the limitation of time enters into the contract of sale, and the reservation or...