Indiana & Arkansas Lumber & Manufacturing Co. v. Eldridge

• Decision Date: 22 February 1909
• Citation: 116 S.W. 1173,89 Ark. 361
• Parties: INDIANA & ARKANSAS LUMBER & MANUFACTURING COMPANY v. ELDRIDGE
• Court: Arkansas Supreme Court

116 S.W. 1173

89 Ark. 361

INDIANA & ARKANSAS LUMBER & MANUFACTURING COMPANY v. ELDRIDGE

Supreme Court of Arkansas

February 22, 1909

Appeal from Lee Circuit Court; Hance N. Hutton, Judge; reversed.

STATEMENT BY THE COURT.

The foundation of the present action is a contract which was exhibited with the complaint and reads as follows:

"J R. Jarratt to Moss Tie Company.

"Know all men by these presents, that I, J. R. Jarratt, of the county of Lee and State of Arkansas, for and in consideration of the sum of forty-five hundred dollars cash in hand paid the receipt of which is hereby acknowledged, have this day sold and by these presents do bargain, sell and convey unto the T. J. Moss Tie Company [a corporation existing under the laws of the State of Missouri, with its principal office in the city of St. Louis, Mo.] all of white oak and species of white oak timber and all other classes or species of timber to be found on a certain tract or parcel of land located in Lee County, in the State of Arkansas, about six to nine miles from the city of Marianna, Arkansas, in an easterly direction, and more particularly described as follows to-wit: S.W. 1-4 of sec. 2; Frl. S. 1-2 S.E. 1-4 and S. E 1-4 S.W. 1-4 sec. 12; Frl. N. E. 1-4 and E 1-2 N.W. 1-4 sec. 13, T. 2 N., R. 4 E.; Frl. S. 1-2 sec. 20; N. 1-2 sec. 29 and the N. E. 1-4 S.E. 1-4 sec. 30, T. 2 N., R. 4 E., containing seventeen hundred and one and 4-100 acres more or less.

"And I hereby guaranty unto the said T. J. Moss Tie Company that I am the true and lawful owner of said timber, that it is free from all liens or incumbrances of any kind whatever, and that I have a perfect right to sell and convey the same; and I hereby covenant with the T. J. Moss Tie Company, its representatives and assigns, to warrant and defend the title to said timber against the lawful claims of all persons whomsoever.

"And I hereby grant unto the said T. J. Moss Tie Company, its representatives and assigns, the right, for a period of five years from the date hereof, to enter in and upon said land at any and all times for the purpose of cutting and removing said timber, together with the right, for the said period of five years from the date hereof, to make and use any wagon roadways at any and all such places as may be reasonably necessary to the convenience of hauling said timber from said lands.

"In testimony whereof I have hereunto set my hand and seal on this 30th day of March, 1902.

"J. R. Jarratt [Seal]."

The Moss Tie Company conveyed the timber to the Indiana & Arkansas Lumber & Manufacturing Company. F. P. Eldridge purchased the lands from Jarratt with knowledge of the contract of sale to the Moss Tie Company, and brought this suit to recover damages for the taking of certain logs alleged to belong to him as the owner of the lands described in the above contract.

The facts are practically undisputed, and are as follows: No timber was cut on said lands after the period of the time limit mentioned in the contract. Prior to that date, some trees had been felled on the land, cut into logs, and the logs were left lying on the ground where the trees fell. Logs to the number of 314, amounting to 156,824 feet, were hauled away from the land by the defendant company. These logs were not hauled away prior to the 30th day of May, 1907, on account of the water, but were hauled out as soon as the teams could get in where the logs lay.

There was a jury trial and verdict for plaintiff in the sum of $ 152.79, the amount found by the evidence to be the value of the logs. The defendant has duly prosecuted an appeal.

Judgment reversed and case dismissed.

H. F. Roleson, for appellant.

The deed is an absolute grant of the timber on the land, containing a covenant of warranty. There is no provision for a forfeiture, nor any provision that the timber should be removed within any certain time. When the timber was severed from the soil and converted into saw logs, it became personal property, and the title thereto, in the absence of a forfeiture provision, remained in appellant, even after the expiration of the time limited by the deed. 32 L.R.A. 102; 102 N. W. [Minn.] 387; 96 Me. 57; 95 N.W. 1078; 69 Mo.App. 496; 69 N.E. 696; 42 So. 858; 107 S.W. 1045; 128 Ga. 563; 107 S.W. 733; 3 L.R.A. [N.S.] 649 and note; 55 L.R.A. 513, note.

W. A. Compton, for appellee.

The courts have generally construed contracts for the sale of standing timber, to be removed within a specified time, to be sales of only so many trees as the vendee might cut and remove within the time designated; the balance remaining the property of the vendor. 28 Am. & Eng. Enc. of L., [2d Ed.], Under the great weight of authority, appellant was entitled 541. Under his contract only to such timber as was actually cut and removed within the time limited by his contract. 59 Mich. 263, 26 N.W. 488; 27 Mich. 451; 660 Mich. 626, 27 N.W. 697; 134 N.C. 116; 2 Keyes [N. Y.] 323; 13 Me. 122; 153 Mass. 388; 102 Mass. 375. See also 4 Am & Eng. Ann. Cas. 1047.

OPINION

HART, J., [after stating the facts.]

The facts in this case are undisputed. The timber was cut down or severed from the soil prior to the 30th day of May, 1907, and the logs were left lying on the ground where the trees fell. The sole question raised by the appeal is, could the appellant subsequent to the time limit remove the logs from the land without being liable for conversion? The question is an open one in this State. The point was raised in the case of Plummer v. Reeves, 83 Ark. 10, 102 S.W. 376, but the court held that, under the facts of that case, it was abstract, and was not necessary to be considered in determining the issues involved. The question has been many times considered by the courts of other States and there is great conflict and some confusion in the decisions. The latter has largely arisen because each decision is to a great extent based upon its own peculiar facts, and the courts have not always been apt in citing decisions upon which their opinions have been based. Some of the contracts considered contained other stipulations and facts, which made the discussion of the general principles here involved unnecessary to be determined; in others the decisions were placed upon the evident design of the parties to the contract under examination as shown by the particular expression and provisions thereof.

To illustrate, in the case of Taylor-Brown Timber Company v. Wolf Creek Coal Company, a Kentucky case, reported in 107 S.W. 733, the second paragraph of the syllabus reads as follows:

"In the case of contracts granting the right to cut and remove timber for a certain term, time is ordinarily the essence of the contract, and, where the contract by its terms expires, the rights of the vendees automatically terminate." An examination of the contract in that case shows that the grantees of the timber had four years "to cut and remove the trees and logs," thus showing by the express terms of the instrument that the parties designed that, not only the timber should be severed from the soil, but that the logs should also be removed from the land within the time limit. So in the case of Saltonstall v. Little, [Pa.] 35 Am. Rep. 683, the language of the deed was "cut, remove, take and carry away."

In the case of Kemble v. Dresser, 42 Mass. 271, 1 Met. 271, 35 Am. Dec. 364, which is usually cited to support appellee's contention, the language used was that the wood should be "got off and removed within 2 years and not afterwards;" and thus, this case is distinguished in the case of Plumer v. Prescott, 43 N.H. 277.

The case of King v. Merriman, 38 Minn. 47, 35 N.W. 570, seems to sustain appellee's contention, but in the later case of Alexander v. Bauer, 94 Minn. 174, 102 N.W. 387, the Supreme Court of Minnesota referring to the case, said: "The inference adopted by the learned judge who wrote the opinion in that case was not necessary to its decision, and, upon the view which we have taken, must be treated as dicta which should not control our present view." The court held that, upon the failure to remove the logs before the time...