Liston v. Chapman & Dewey Land Co.

• Decision Date: 11 November 1905
• Citation: 91 S.W. 27,77 Ark. 116
• Parties: LISTON v. CHAPMAN & DEWEY LAND COMPANY
• Court: Arkansas Supreme Court

91 S.W. 27

77 Ark. 116

LISTON v. CHAPMAN & DEWEY LAND COMPANY

Supreme Court of Arkansas

November 11, 1905

Appeal from Mississippi Chancery Court; EDWARD D. ROBERTSON Chancellor; reversed in part.

STATEMENT BY THE COURT.

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.

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 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 co-appellant, 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 eighteen 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 Land 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."

Decree affirmed, reversed and cause remanded.

Driver & Harrison, and Ewing & Williamson, for appellants.

Where standing timber is sold, and no time is specified in which to remove it, the law implies a contract to remove it within a reasonable time. 108 Tenn. 681, and cases cited; 54 N.H. 452.

Frierson & Frierson, and W. J. Lamb, for appellee.

On the question of reasonable time, the court will first inquire into the condition of the land on which the trees are standing, the hindrances to removal, etc., 108 Tenn. 681. The deed to the growing timber conveyed an interest in the land. 69 Ark. 442; 63 Ark. 10; 98 Mich. 260; 28 Mich. 3; 60 Mich 622; 63 Mich. 487; 26 Mich. 523; 83 Mich. 181; 22 Wis. 544; 70 Miss. 388; 49 Minn. 412; 3 Bland (Md.), 284; 102 Mass. 375; 32 Mich. 522. A sale of merchantable timber has reference to the time when the timber is cut, and not to the date of the deed. 107 Pa.St. 271; 136 Pa. 271. Merchantable is defined as "fit for sale; vendible in market, or a quality such as will bring the ordinary market price." Black, Law Dict. See also Webster's Dict. Merchantable timber and method of ascertaining whether or not it is merchantable, see 66 Am. Dec. 739; 28 Am. & Eng. Enc. (2 Ed.), 542.

Driver & Harrison and Ewing & Williamson, for appellants, in reply.

A conveyance, unless a contrary intent is expressed, relates to the date of its execution, and only such property passes as fulfills the description at the time of executing the conveyance. 119 N.C. 39; 126 N.C. 254; 15 Pa.St. 364; 36 Mich. 89; 6 A. R. (Pa.) 48.

Additional authorities on question of reasonable time for removal of the timber: 111 Ga. 65; 113 Mass. 103; 51 Mich. 320; 6 A. 48; 164 Pa.St. 234; 128 N.C. 46.

OPINION

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. Stillwell, 111 Ga. 65, 36 S.E. 604; Hill, 113 Mass. 103. An estate in the timber necessarily includes the irrevocable right to enter upon the land for the removal of such timber. 2 Pars. Cont. 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 A. 247; Manufacturing Co. v. Hobbs, 128 N.C. 46; 28 Am. & Eng. Enc. Law (2 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. Hoit v. Stratton Mills, 54 N.H. 452; Boults v. Mitchell, 15 Pa. 371; Magnetic Ore Co. v. Marbury Lumber Co., 27 L.R.A. 434. 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. J. I. 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 question here considered was not involved in those cases.

The implication of reasonable time only being granted to the grantee where no time is specified is a construction placed upon such deeds for the benefit of the grantor and his successors in title, and they may waive the forfeiture of the right to enter on the part of the grantee, and may by writing or parol extend the time for the cutting and removal before or after the reasonable time has expired.

What is a reasonable time is generally a mixed question of law and fact. The facts are to be ascertained by an inquiry into the conditions of the land and timber, the obstacles opposing and the facilities favoring, and the conditions surrounding the parties at the time the contract was made. When all the circumstances are considered, and the facts are determined, the law will...