Macomber v. Detroit, L. & N.R. Co.

• Decision Date: 03 March 1896
• Citation: 108 Mich. 491,66 N.W. 376
• Parties: MACOMBER ET AL. v. DETROIT, L. & N. R. CO.
• Court: Michigan Supreme Court

66 N.W. 376

108 Mich. 491

MACOMBER ET AL. v. DETROIT, L. & N. R. CO.

Supreme Court of Michigan

March 3, 1896

Error to circuit court, Montcalm county; Frank D. M. Davis, Judge.

Action by Allen Macomber and John Bale against the Detroit, Lansing & Northern Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

McGarry & Nichols, for appellant.

Whittlesey & Kennedy (Vernon H. Smith, of counsel), for appellees.

MONTGOMERY J.

On the 22d day of July, 1892, the Cutler & Savage Lumber Company executed a writing to one John S. Wiedman, containing the following provisions: "The Cutler and Savage Lumber Company has this day sold to J. S. Wiedman, of Lake View Michigan, all of the timber on the entire section twenty-nine, town thirteen north, range seven west. The said J. S. Wiedman is to remove the timber in two years from this date; and, in case the Cutler and Savage Lumber Company sell any of said land, the said J. S. Wiedman is to remove the timber from the land sold at once on being notified of said sale." On the 4th of November, 1892 Wiedman sold the same timber to plaintiff, and the lumber company afterwards sold the land to one Fred Bissell. No notice of this sale or request for immediate removal was made. Plaintiffs, within the two years, cut the pine in question into logs, but had not removed the logs from the premises within the two years. Bissell removed them, and defendant represents his title. The question is whether failure to remove the logs after they were cut, and within the two years named in the contract, forfeited the title. Contracts containing similar provisions have been construed in the courts in a number of the states, and the weight of authority supports the defendant's contention that, as to timber remaining uncut at the expiration of the time limited under a contract such as this, the title reverts to the owner of the realty. See Pease v. Gibson, 6 Me. 84; Howard v. Lincoln, 13 Me. 123; Saltonstall v Little, 90 Pa. St. 422; Utley v. Lumber Co., 59 Mich. 263, 26 N.W. 488; Haskell v. Ayres, 32 Mich 93, 35 Mich. 89; Gamble v. Gates, 92 Mich. 510, 52 N.W. 941. None of the Michigan cases directly determine the status of timber cut and manufactured into logs during the time limited by such a contract as that in question, but not removed until later. In Gamble v. Gates the contract covered all the timber standing, lying, or being on the land. It was provided expressly that whatever of said timber shall remain on said lands after the limit afforded shall revert back, and become the property of, the first party. The case was determined by the terms of the contract. In Golden v. Glock, 57 Wis. 118, 15 N.W. 12, a contract similar to that in question was held to convey title to only such timber as was removed within the time limited, but considered all such timber as was manufactured into hoop poles...