Saltonstall v. Little

• Citation: 90 Pa. 422
• Parties: Saltonstall <I>et al. versus</I> Little.
• Decision Date: 23 June 1879
• Court: United States State Supreme Court of Pennsylvania

90 Pa. 422

Saltonstall et al. versus Little.

Supreme Court of Pennsylvania.

June 2, 1879.

June 23, 1879.

June 2d 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas of Elk county: Of May Term 1879, No. 93.

George A. Rathbun, for plaintiffs in error.—The first part of the clause standing alone, without the reservation of the right of ingress and egress, would have been a valid exception of the pine timber on the land, and would have carried with it the right of entry upon the land until the timber was removed, or the right of entry was terminated by a reasonable notice.

The twelve years limited in Hyde's agreement, for removing the pine, having long since expired, and he claiming no right of entry or any title to the remaining pine, this case was instituted for the purpose of obtaining an adjudication of the rights of the vendor and vendee under the deed of 5th January 1860.

In Boults v. Mitchell, 3 Harris 371, it was held that the right to cut timber was not to continue for ever at the pleasure of the grantor, and if he refuses to exercise his right after reasonable notice to do so, the right itself is determined, and the right of entry gone.

If then, the right of entry may be determined by a reasonable notice by the vendee as adverse to the vendor, may not the vendor himself fix the "reasonable notice," or the time within which he may enter and remove that which he has accepted, thus making a law for himself and his grantee in regard to the subject-matter.

A limitation upon the right of entry, is a limitation of the estate excepted. An exception of standing timber constitutes a severance from the freehold only conditionally, and where there is no limitation of time, there is an implied condition that the timber shall be taken off at the request of the owner of the fee. All the rights of the plaintiff rest upon the exception or reservation. An integral part thereof, was the limited time within which the timber could be removed.

John G. Hall and C. H. McCauley, for defendant in error.— The intent to create a condition must be not only clear, but in a deed, expressed in apt words; and we have in this deed neither the words proviso, ita quod, sub-conditione, nor are there any others equivalent to them. Nor are there any to indicate an intent to create a condition: Cook v. Trimble, 9 Watts 16.

When there is a breach of the condition upon which an estate has been granted, the grantor may re-enter, because the estate reverts to him. But with what reason should that be held to be a condition, a breach of which should operate to take from a grantor an estate which he had never conveyed, and transfer it to the grantee, who had never owned it, thereby operating not simply to defeat an estate, but as a new conveyance?

Mr. Justice PAXSON delivered the opinion of the court, June 23d 1879.

Whether we regard the clause in controversy, in the deed from Kingsbury to Veazie,...