Jackson County v. Compton

• Decision Date: 01 May 1980
• Citation: 609 P.2d 1293,289 Or. 21
• Parties: JACKSON COUNTY, a political subdivision of the State of Oregon, Respondent, v. Betty K. COMPTON, John C. Compton, and First State Bank of Oregon, an Oregon corporation, as Trustee of the Thomas E. Whittle Unitrust, Petitioners, Thomas E. Whittle, Defendant. CA 11316; SC 26476, 26483. . *
• Court: Oregon Supreme Court

Page 1293

609 P.2d 1293

289 Or. 21

JACKSON COUNTY, a political subdivision of the State of Oregon, Respondent, v. Betty K. COMPTON, John C. Compton, and First State Bank of Oregon, an Oregon corporation, as Trustee of the Thomas E. Whittle Unitrust, Petitioners Thomas E. Whittle, Defendant.

CA 11316; SC 26476, 26483.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Dec. 4, 1979.

Decided April 8, 1980.

Rehearing Denied May 1, 1980.

William B. Wyllie, Salem, argued the cause and filed briefs for petitioners Compton.

Michael J. Morris, Portland, argued the cause for petitioner First State Bank of Oregon. With him on the briefs was J. Rion Bourgeois, and Evans, Hall & Grebe, P. C., Portland.

Thomas J. Owens, Medford, argued the cause and filed a brief for respondent.

HOWELL, Justice.

This is a declaratory judgment proceeding filed by plaintiff, Jackson County (herein "County"), seeking a determination that the County is the owner and entitled to possession of certain stockpiled gravel. The defendants are Betty K. Compton and John Compton ("Comptons"), the owners of the real property upon which the gravel is located; First State Bank of Oregon ("Bank"); and Thomas E. Whittle ("Whittle"), who did not appear and is no longer involved as a party. The trial court entered a summary judgment in favor of defendants. On appeal, the Court of Appeals reversed, and we granted review.

On October 20, 1971, defendant Whittle, the original owner of the real property, entered into an agreement with Jackson County for the processing and removal of river run rock from Whittle's property. The agreement stated, in part:

"(1) The owners (Whittle) hereby agree that the County Road Department may enter upon such portions of their land described above as may be necessary to remove said deposits of river run rock, * * *.

" * * *.

"(3) The owners further agree that the County Road Department may locate and operate upon their premises such equipment as may be necessary to remove and process said rock in the most efficient manner, and that the County may use such existing roads and bridges as may be convenient to the County.

"(4) The owners further agree that any rock manufactured by the County Road Department on the owners' premises shall be paid for at that time and will belong to the County Road Department and may be stockpiled on the premises of the owners. The County shall have the continuing right to remove said stockpiled rock until this agreement expires on January 1, 1974. * * * "

Later the agreement was extended to January 1, 1976.

Prior to the termination date and on March 21, 1975, Whittle conveyed the real property to the Bank. The deed contained the clause:

" * * * without limitation, all of the rents and profits thereof from and after the date hereof * * * reserving unto Grantor no interest whatsoever in the aforesaid real property or the rents and profits thereof."

After Whittle conveyed to the Bank, he apparently made some assurances to the County that the County owned the gravel. However, the County knew about the conveyance from Whittle to the Bank and, in a letter dated July 18, 1975, an agent for the County wrote to Whittle stating, in part: "I will be happy to discuss a gravel purchase agreement with the new owners at their convenience."

On December 31, 1975, the Bank sold the real property to the Comptons on contract. After January 1, 1976, the extended expiration date of the County-Whittle agreement, the Comptons refused to allow the County to remove the stockpiled gravel from the premises, and the County filed this declaratory judgment proceeding.

The terms of the agreement between Whittle and the County describe the grant of a "profit a prendre" or "profit." A profit a prendre is the right to acquire, by severance or removal from another's land, some thing or things previously constituting a part of the land. 3 Tiffany, Real Property 427 § 839 (3d ed. 1939, Jones ed.); 1 Thompson, Real Property 523, § 139 (Grimes 1964); Hahner, An Analysis of Profits A Prendre, 25 Or.L.Rev. 217, 221, 227 (1946). See also High v. Davis, 283 Or. 315, 322, 584 P.2d 725 (1978); Bingham v. Salene, 15 Or. 208, 214, 14 P. 523 (1887). Profits include the right to take gravel, stone or minerals from another's land and the right to enter, cut and remove timber from another's land. Tiffany, supra at 428; Thompson, supra at 510, § 135; Hahner, supra at 218-19 n. 5. See also Babler Bros., Inc. v. Hebener, 267 Or. 414, 418 n. 1, 517 P.2d 653 (1973) (rock); Gray v. Handy, 349 Mass. 438, 208 N.E.2d 829 (1965) (sand); Beckwith v. Rossi, 157 Me. 532, 175 A.2d 732 (1961) (gravel). Cf. Paullus v. Yarbrough et ux., 219 Or. 611, 639-40, 347 P.2d 620 (1959) (timber); Falk, Timber and Forest Products Law 38, § 36 (1958); Note and Comment, 34 Or.L.Rev. 256, 258-59 (1955).

The Restatement of Property describes a profit as being similar to an easement and subject to the same rules as easements. Restatement of Property § 450, Special Note (1944). The Restatement goes on to explain that a profit is an easement that may include

"the privilege to acquire, through severance, ownership of some part of the physical substances included in the possession of the land subject to the easement. * * *. The rights in the physical substance severed are changed from interests in land owned by the owner of the land subject to the easement to interests in chattels personal owned by the owner of the easement." Id. at comment f.

The duration of a profit a prendre depends on the original terms of the grant creating the right. Thompson, supra at 527, § 140; Hahner, supra at 244. By the terms of the agreement between Whittle and the County, as extended, the grant of the profit to take the river run rock would expire on January 1, 1976. The agreement also specified that the County would no longer have a continuing right to remove stockpiled rock after that date. Previous decisions of this court and other courts indicate a general rule with regard to removal date provisions in agreements to enter, sever, and remove physical substances such as timber, coal and gravel from another's land.

In Sandy Holding Co. v. Ferro, 144 Or. 466, 25 P.2d 561 (1933), the defendant claimed the right to cut and remove timber from plaintiff's land based on a contract that limited the right of removal to a specific term. The contract did not specify what would happen to timber cut but not removed before the removal date. We held the following:

"The contract under which the defendant claims merely granted his predecessor in interest the right to remove the timber before a certain date. So much of the timber as was removed by him before the date fixed in the contract, or any extension thereof, would belong to him. Such of the timber as had not been removed by him, although cut, within the time agreed upon, would belong to the owner of the land, and the defendant would have no interest therein. The defendant, therefore, had no right to remove any cordwood from plaintiff's land after August 1, 1932, and should account for the value thereof at the place from which it was removed at the time of its removal." 144 Or. at 476, 25 P.2d at 564. (Emphasis added.)

We particularly relied on several prior decisions that a conveyance of timber on the condition that it be removed by a specific date amounts only to a sale of all the timber that the grantee can cut and remove before that date. See Coquille M. & T. Co. v. Dollar Co., 132 Or. 453, 285 P. 244 (1930); Kee v. Carver, 95 Or. 406, 187 P. 1116 (1920); Kreinbring v. Mathews, 81 Or. 243, 159 P. 75 (1916); Anderson v. Miami Lumber Co., 59 Or. 149, 116 P. 1056 (1911). In the Coquille case we said:

" * * * This court, in harmony with the decisions of other courts, has several times held that when a logging contract specifies a definite term within which the buyer may remove the timber from the land of the seller, his right terminates at the conclusion of the term even though timber remains upon the land and the contract contains no provisions for a forfeiture. * * *." 132 Or. at 469, 285 P. at 250.

In Anderson v. Miami Lumber Co., supra, this court explained that a landowner selling the right to cut timber is most concerned about the time of its removal from the land:

" ' * * * (W)e conclude that it was the intention of the parties that the purchaser should have the three years specified for a removal of the timber whether standing or lying down, and that at the expiration of that time his interest in the timber should cease, and that the title to the timber would then be in the person owning the land. * * * In many of the contracts which have been construed by the courts the language is 'cut and remove,' but it is evident that the main consideration, even in those cases, is the removal. Just how the removal is to be effected is not of interest to the seller. The great desideratum to him is the recovery of the possession of his land at the time specified. * * * All these technical questions have been determined by this court in Lehtonen v. Marysville & Power Co., 50 Wash. 359, 97 P. 292. * * * There it was said: "Whether the reservation of the timber made it, in legal effect, personal property or otherwise, makes no difference. * * * The contract of reservation provides that it shall be removed within the given time. If it was the intention of the parties that the timber might be removed after that time, the limitation means nothing, and was misleading. " * * * Certainly the respondent cannot escape the important provision providing the time within which he is permitted to remove the timber. He knew that, under the plain provisions of his contract and it is difficult to see how it could be made plainer he had three years from the date of the contract in which to remove the timber. His action in cutting more than he could or would remove in that time was an evasion of both the letter and spirit of his contract, and he must...