Magnetic Ore Co. v. Marbury Lumber Co.

• Decision Date: 14 November 1894
• Citation: 16 So. 632,104 Ala. 465
• Parties: MAGNETIC ORE CO. v. MARBURY LUMBER CO. [1]
• Court: Alabama Supreme Court

16 So. 632

104 Ala. 465

MAGNETIC ORE CO. v. MARBURY LUMBER CO. ^[1]

Supreme Court of Alabama

November 14, 1894

Appeal from chancery court, Chilton county; S. K. McSpadden Chancellor.

Bill by the Magnetic Ore Company against the Marbury Lumber Company to cancel a deed to defendant of timber standing on land afterwards conveyed to plaintiff. From an order sustaining a demurrer to the bill, plaintiff appeals. Affirmed.

The title of the respondent is rested upon a deed from the Louisville & Nashville Railroad Company, executed on July 29 1891, to certain parties through whom the respondent claims.

Houghton & Collier, for appellant.

J. M Falkner, for appellee.

COLEMAN J.

We presume the present bill was filed under the provisions of an act of the legislature entitled "An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same." Acts 1892-93, p. 42. The bill shows that in July, 1881, the Louisville & Nashville Railroad Company, by deed of conveyance regularly executed sold and conveyed absolutely the "saw timber" growing on certain lands. No mention is made in the conveyance as to when, if ever, the "saw timber" was to be cut and removed, but the "saw timber" is sold and conveyed wholly without condition or limitation. This, the bill avers, is the claim and interest of the defendant. The bill avers, and exhibits show, that the Louisville & Nashville Railroad Company, by deed of conveyance made in October, 1886, sold and conveyed the lands to H. F. De Bardeleben, with the following provision or reservation: "But it is understood and agreed that the timber with right of way to reach same has been sold," etc. On February, 1888, De Bardeleben conveyed to complainant. This is complainant's title. The prayer of the bill is that it be decreed that respondent has no interest in the lands, and that the deed of conveyance by the Louisville & Nashville Railroad Company of the "saw timber" to them be canceled. The respondent demurred to the bill, assigning several grounds of demurrer, the last of which was "that the bill was without equity." Both parties claim their respective rights and interests from the Louisville & Nashville Railroad Company, the respondent by deed of prior date, notice of which, under the averments of the bill, is chargeable to complainant. We regard it as settled law in this state that growing trees are such a part of the realty that the title to or interest in the same can be conveyed or transferred only by written instrument. The rule is not universal, under all circumstances. See Leading Cases in the American Law Reports, with notes by Sharswood and Budd (Murphy v. Hubert, 4 Shars. & B. Lead Cas. Real Prop. p. 515). The two deeds from the Louisville &amp Nashville Railroad Company, the first to the respondent, and the latter to complainant, conveyed different and distinct interests of the same realty. The bill does not show that the respondent has at any time, or does now, claim to own any interest except that purchased from and conveyed by the owner thereof. As we understand the averments of the bill, the complainant does not claim that by its deed in October, 1888, it acquired any legal right or title to the "saw timber." As we understand the bill, the prayer for relief is based upon the proposition that, as the deed of conveyance for the "saw timber" did not specify any time within which the timber was to be cut and removed, the law supplied a provision to the effect that it was to be cut and removed within "a reasonable time," and, the respondent having failed to do this within a reasonable time, the right to the "saw timber" was forfeited and became the property of complainant. We will consider this proposition further on. If it be true, as held in some decisions, that a deed of conveyance of trees or timber operates ipso facto as a severance of them from the realty, and that the trees are thereby converted into personalty, the bill is without equity, as regards the "saw timber," as under such a rule there can be no claim by respondent under this conveyance to any part of the realty. Under this view, the case made by the bill is not within the statute under which it is filed. It is simply a contention over personal property, which may be fully settled in a court of law. On the other hand, if the trees until cut remain realty, the case made by the bill is that the respondent is claiming only what it purchased, in which complainant has no interest, unless the respondent has forfeited its real estate by a failure to remove it within a reasonable time, and by the forfeiture the right and title of those who bought and paid for it became vested in the complainant, who never purchased it, and has no deed of conveyance for it. There ought to be some cogent reasons compelling such a conclusion, or decisions to that effect which have established a rule of property, before we should adopt it as law. The case of Hoit v. Stratton Mills, 54 N.H. 109, cited...