State ex rel. Oklahoma Planning and Resources Bd. v. Smith

• Decision Date: 29 October 1957
• Docket Number: No. 37610,37610
• Citation: 317 P.2d 219
• Parties: STATE of Oklahoma ex rel. OKLAHOMA PLANNING AND RESOURCES BOARD, Plaintiff in Error, v. Otto SMITH and Russell Austin, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 219

317 P.2d 219

1957 OK 264

STATE of Oklahoma ex rel. OKLAHOMA PLANNING AND RESOURCES BOARD, Plaintiff in Error, v. Otto SMITH and Russell Austin, Defendants in Error.

No. 37610.

Supreme Court of Oklahoma.

Oct. 29, 1957.

Syllabus by the Court

1. A conveyance of land reserving the growing timber thereon, with the right to go upon such land for the purpose of cutting and removing such timber therefrom creates in the grantor only a terminable estate in such growing timber, unless it is plainly manifest that it was the intention of the parties to create a fee simple estate in the timber reserved.

2. Any doubt as to the construction to be placed upon a deed of land reserving the timber thereon, is to be resolved most strongly against the grantor, and so as to confer on the grantee the greatest estate that the terms thereof will permit.

3. Where deed granting or reserving timber does not fix any time within which such timber must be removed, and does not clearly manifest intention that right to remove continue in perpetuity, holder of such right has only a reasonable time under all the circumstances within which to exercise the right to cut and remove timber.

4. What is a reasonable time in a given case, within which timber granted or reserved under a deed should be removed, is generally a mixed question of law and fact, and in each case the question of what is a reasonable time must be determined from the facts and circumstances peculiar to that case. Except in extreme cases, where the period is very short or very long, the court cannot determine, as a matter of law, whether the reasonable time within which the grantee of a timber right should exercise the same, has or has not expired.

5. Failure to remove timber reserved by grantor in deed for a period of over eighteen years constitutes extreme case in which court can determine, as a matter of law, that a reasonable time within which to remove the timber has expired, where no explanation or excuse for such failure for such time is pleaded.

Appeal from the District Court of Latimer County; Clyde M. Followell, Judge.

Action to Quiet Title to Growing Timber in Which Judgment Was Rendered for Defendants and Plaintiff Appeals. Reversed.

Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., James C. Harkin, Asst. Atty. Gen., for plaintiff in error.

A. James Gordon, McAlester, Bob Perdue, Wilburton, Robinson, Shipp, Robertson & Barnes, by Leon Shipp, Oklahoma City, for defendants in error.

WILLIAMS, Justice.

This action was brought by the State of Oklahoma, ex rel. Oklahoma Planning and Resources Board, hereinafter referred to as plaintiff, to quiet title to 240 acres of land in Latimer County, Oklahoma, as against Otto Smith and Russell Austin, hereinafter referred to as defendants. After numerous pleadings had been filed by both parties and the cause had been set for trial, plaintiff filed a motion for judgment on the pleadings. At the hearing on such motion it was stipulated by the parties that the only disputed matter concerned the timber growing upon the lands in question and that defendants were entitled to judgment on the pleadings as to an undivided one-half interest in and to the oil, gas and other minerals in and under said lands and that plaintiff was entitled to judgment on the pleadings as to the 'surface' of said land, the only question left for determination by the court being the question of the ownership of the timber growing on said land.

The trial court overruled the motion for judgment on the pleadings in so far as the timber was concerned, but rendered judgment on the pleadings for plaintiff as to the 'surface' of said land, except as to the timber growing thereon, and for the defendants as to an undivided one-half interest in and to the oil, gas and other minerals in and under said lands, and ordered the cause to trial on the merits in so far as the timber and timber rights were concerned.

At the trial of the cause it was stipulated by the parties that on or about January 5, 1938, the Atlas Powder Company, a Delaware Corporation, and then the owner of the 240 acres of land involved herein, donated the same to the State of Oklahoma, acting by and through the Oklahoma Planning and Resources Board, and its division of State Parks, for park purposes, and, by deed dated January 5, 1938, conveyed the same to said State of Oklahoma for park purposes; that such gift and deed evidencing the same were duly accepted by the State of Oklahoma, acting by and through the Oklahoma Planning and Resources Board, and said deed was shortly thereafter filed for record. After introducing the above described deed in evidence, plaintiff rested, and the trial court then sustained defendants' demurrer to such evidence and motion for judgment thereon, and rendered judgment in favor of defendants and against the plaintiff as to the timber growing on the lands herein involved.

Plaintiff has perfected this appeal and asserts that the trial court erred in overruling plaintiff's motion for judgment on the pleadings as to the timber growing upon the lands herein involved, and in failing to render judgment on the pleadings in favor of the plaintiff and against the defendants as to said timber and that the court erred in sustaining the defendant's demurrer or motion for judgment on the plaintiff's evidence, and rendering judgment in favor of the defendants and against the plaintiff as to said timber.

The deed of January 5, 1938, by Atlas Powder Company, a Delaware Corporation, as grantor, above referred to, grants to the State of Oklahoma the 240 acres of land involved in this action, to have and to hold the same unto the State of Oklahoma, its successors and assigns, forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature. Said deed contains no reservations nor exceptions in either the granting clause or the habendum clause, but following the habendum clause, contains the following provisions:

'Excepting and Reserving in the above described parcel of land all the oil, gas and other minerals, together with timber on the surface thereof, with the right of ingress and egress over and under the surface of land herein conveyed for the purpose of removing the items reserved.

'This deed is made with the understanding and agreement on the part of the party of the second part that the premises herein described will be used for park purposes, and if at any time it ceases to be so used, the property will thereupon revert to the party of the first part.'

On July 12, 1956, Atlas Powder Company, a Delaware Corporation, as grantor, executed and delivered to Elmer H. Wahl, as grantee, a deed conveying 'all rights, titles, interests and privileges, including reversionary rights, reserved and retained by Atlas Powder Company' in and to the 240 acres of land here involved in its deed of January 5, 1938, to the State of Oklahoma.

On July 13, 1956, Elmer H. Wahl and Marian Wahl, his wife, as grantors, executed and delivered to Otto Smith and Russell Austin, defendants herein, as grantees, a deed conveying the same lands and rights as those covered by the deed of July 12, 1956, above mentioned, but subject to a prior conveyance of an undivided one-half interest in all the minerals in and under the lands involved.

Plaintiff asserts that as a matter of law, under the uncontroverted facts set forth in the pleadings, plaintiff, under the above described deed of January 5, 1938, and after the expiration of a reasonable time thereafter for the grantor in said deed, and its successors in interest as to the timber reservation therein, to cut and remove the timber growing on the lands described in said deed, acquired the title to, and the right to possession of the timber growing on the lands here involved. The authorities cited by plaintiff [appeal to] support such contention. We have held that a timber deed or contract, conveying all of the growing timber on specified land, with the right to go upon such land for the purpose of cutting and removing the timber therefrom, creates a 'terminable' estate in the growing timber; and, if such deed or contract specifies the time allowed for such cutting and removal, such provision of the deed or contract controls and the holder of such right has that time, but only that time, to cut and remove the timber, but, if such deed or contract does not fix any time in which such timber must be removed, the holder of such right has a 'reasonable time' under all the circumstances, within which to exercise his right to cut and remove the timber from such lands. Mitchell-Crittenden Tie Co. v. Crawford, 61 Okl. 191, 160 P. 917; Faulkner v. Allen, 70 Okl. 280, 173 P. 1133; Ross v. Choctaw Lumber Co. 176 Okl. 399, 55 P.2d 1041; Blake v. Burnett-Hauert Lumber Co., 192 Okl. 244, 135 P.2d 325; Dierks Lumber & Coal Co. v. Fry, 203 Okl. 467, 223 P.2d 113, 21 A.L.R.2d 614. In the second paragraph of the syllabus in Mitchell-Crittenden Tie Co. v. Crawford, supra, this court said:

'An instrument conveying standing timber, which specifies no time for its removal, grants a terminable estate in such timber, which may end when a reasonable time for such removal expires. What constitutes such reasonable time is dependent upon the facts and circumstances of the particular case.'

In Ross v. Choctaw Lumber Co., supra [176 Okl. 399, 55 P.2d 1042], this court reaffirmed the rule announced in Mitchell-Crittenden Tie Co. v. Crawford, supra, and in the opinion therein said:

'The reason for such a rule is obvious. Where a land owner merely sells the timber, but retains full title to the land itself, there should be some time when he is again restored to the full possession of the land and his title freed on the timber contract and the burdens incident thereto.'

Defendants suggest that the above cited cases are not in point because they all involve grants of...