Liston v. Chapman & Dewey Lumber Co.

• Citation: 91 S.W. 27
• Parties: LISTON et al. v. CHAPMAN & DEWEY LUMBER CO.
• Decision Date: 11 November 1905
• Court: Supreme Court of Arkansas

91 S.W. 27

LISTON et al. v. CHAPMAN & DEWEY LUMBER CO.

Supreme Court of Arkansas.

November 11, 1905.

Appeal from Mississippi Chancery Court; Edward D. Robertson, Chancellor.

Suit by H. P. Liston and others against the Chapman & Dewey Lumber Company. From the decree, plaintiffs appeal. Reversed.

This is a suit by appellants against appellee to quiet title to a tract of land in Mississippi county, and to restrain appellee from removing timber from such land. Both appellants and appellee claim from a common source of title. The heirs of Jacob Corbett were originally the owners of the land. In 1898 these heirs by their deed conveyed to E. A. Carleton all of the merchantable cottonwood, ash, and cypress timber on this land, and in 1900 the same heirs conveyed the land to John T. Davis, subject to the timber deed to Carleton. On the 13th day of April, 1900, E. A. Carleton by his warranty deed conveyed the said timber to appellee. John T. Davis conveyed to R. S. Gibson, and H. P. Liston, November 15, 1902, and Gibson and Liston conveyed to their coappellant, Cooper, November 26, 1902. This suit was instituted July 21, 1903. No time was specified in the deed from the Corbett heirs to Carleton, or from Carleton to appellee, in which this timber was to be removed. The complaint alleged that appellee had not entered upon the land to remove the timber, and that a reasonable time had expired. Appellee denied the allegation. The court found the following: "That the defendant owned all the cottonwood, ash, and cypress timber standing and growing on section 34 that was merchantable in the month of April, 1898, and that the plaintiffs are the owners of the remaining interest in the land; that all of the timber less than 18 inches in diameter at the stump at that date was not merchantable in the month of April, 1898, and is the property of plaintiffs; that all the timber cut by defendant, whether removed or not, was merchantable timber, and that it had a right to enter upon the land and remove the timber and to cut and remove all timber not less than 18 inches at the stump." Thereupon the court decreed a sale of the lands and appointed a commissioner, and directed him to proceed as follows to sell the real estate, viz.: "(1) All cottonwood, ash, and cypress timber standing and growing on said land not less than 18 inches in diameter shall be sold separately, with the privilege on the part of the purchaser to enter upon said land and cut and remove the said timber therefrom for a period of one year after the sale thereof. (2) The remaining interest in said land shall then be sold to the highest bidder for cash in hand, subject to the sale of said cottonwood, ash, and cypress timber aforesaid" — and directed him to distribute the proceeds as follows: "The said commissioner is further ordered and directed to pay to the defendant herein, the Chapman & Dewey Lumber Company, all the purchase money so received for the said cottonwood, ash, and cypress timber, and to pay to the plaintiffs herein the purchase money so received from the sale of the remaining interest of said land, and said commissioner is directed to report to this court at its next term in writing all action taken by it in this matter prior to the convening of said court."

Driver & Harrison and Ewing & Williamson, for appellants. Frierson & Frierson and W. J. Lamb, for appellee.

WOOD, J. (after stating the facts).

First. Under a deed conveying all the merchantable standing timber of a certain description, which specifies no time for its removal, the grantee has a reasonable time for such removal. Carson v. Lumber Co., 108 Tenn. 681, 69 S. W. 320; McRae v. Stilwell, 111 Ga. 65, 36 S. E. 604; Hill v. Hill, 113 Mass. 103, 18 Am. Rep. 455. An estate in the timber necessarily includes the irrevocable right to enter upon the land for the removal of such timber. 2 Par. Con. 534. The weight of authority is, we believe, that, where no time is specified, this right exists only for a reasonable time. See cases cited, supra, and authorities therein collected; also, Patterson v. Graham, 164 Pa. 234, 30 Atl. 247; Manufacturing Co. v. Hobbs, 128 N. C. 46, 38 S. E. 26; 28 A. & E. Enc. Law (2d Ed.) 543, par. 4. Some authorities hold that a deed to standing timber which specifies no time for its removal conveys to the grantee an estate in the timber which runs with the land and goes on forever; but that the right to enter upon the land for removing the timber exists for only a reasonable time after the execution of the deed, and that, if the grantee thereafter enters upon the land to remove his own timber, he will be guilty of trespass. Holt v. Stratton Mills, 54 N. H. 452; Boults v. Mitchell, 15 Pa. 371; Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73. This doctrine it seems to us involves some anomalies, if not contradictions, in the law. Suffice it to say, on this point, we approve the rule announced in the well-considered opinion of the Supreme Court of Georgia, supra. In the absence of something in the instrument itself, or in the proof aliunde showing a contrary intention, a deed to standing merchantable timber which specifies no time for its removal conveys a terminable estate in the timber, which ends when a reasonable time for the removal of such timber, after the execution of the deed, has expired. McRae v. Stilwell, supra. There is nothing in Kendall v. Porter Lumber Co., 69 Ark. 442, 64 S. W. 220, or McLeod v. Dial, 63 Ark. 10, 37 S. W. 306, to conflict with this view. The...