Sturm v. Crowley
| Decision Date | 08 June 1948 |
| Docket Number | Case No. 9979. |
| Citation | 48 S.E.2d 350,131 W.Va. 505 |
| Parties | STURM v. CROWLEY et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Timber reserved by grantor, no time for removal being prescribed must be removed within a reasonable time from the date of such reservation. What is a reasonable time depends on the facts and circumstances of each case.
Appellant did not appear in person or by counsel.
Ambler McCluer & Davis and Fred L. Davis, all of Parkersburg, for appellees.
This suit was instituted in the Circuit Court of Calhoun County by W. J. Sturm against Margaret L. Crowley and Pat O'Connor and involves the title to timber standing on a twenty-one-acre tract of land situate in that county. The trial court decreed that Margaret L. Crowley is the owner of said timber, from which decree plaintiff appeals.
Martin F. Crowley, the deceased husband of Margaret L. Crowley, was engaged in the business of developing properties in and about Calhoun County for oil and gas purposes, which business Margaret L. Crowley continued to operate after her husband's death. The usual practice of Martin F. Crowley in carrying on his business, was to purchase in fee various tracts of land which he would thereafter exploit for oil and gas purposes. Frequently he would sell the lands so purchased, reserving to himself the oil, gas and other minerals thereon or thereunder, as well as the standing timber and necessary surface rights pertaining thereto. It is clearly established that the timber so reserved was used by Crowley in and about his oil and gas operations, not for the purpose of manufacturing commercial lumber. The twenty-one-acre tract of land here considered was one so purchased and so sold by Martin F. Crowley.
When Martin F. Crowley and his wife so conveyed said twenty-one-acre tract of land, the deed therefor to B. J Watkins and C. J. Watkins, apparently husband and wife, dated November 27, 1926, contained the following: '* * * the said parties of the first part do hereby release and except from the operation of this conveyance, and do not hereby convey, all of the oil, gas and other minerals, and all timber in, under and upon the real estate hereinbefore described, together with the right to enter upon said real estate and cut and remove said timber therefrom. * * *.'
Martin F. Crowley died in the year 1934, and, according to the bill of complaint and testimony, he devised and bequeathed all of his property to his wife, one of the defendants herein.
The said tract of land was conveyed by a special commissioner, appointed by the Circuit Court of Calhoun County in a suit against the administrator de bonis non of the estate of C. J. Watkins and others, to F. E. Vandale by deed bearing date the 25th day of August, 1936. The special commissioner's deed excepted and reserved the '* * * timber, in favor of former owners thereof, as their interests may appear.'
Vandale and wife, by a quitclaim deed bearing date the 13th day of August, 1938, conveyed the said tract of land to Howard Murphy. Murphy and wife, by deed dated the 30th day of August, 1941, conveyed said land to Harvey Murphy. In the deed of conveyance made by Howard Murphy, the following appears: 'The intention of this conveyance is to vest in Harvey Murphy all rights and title held by said Howard Murphy by reason of said deed from said Vandale, to have and to hold with general warranty.'
W. J. Sturm, plaintiff herein, acquired the land from Harvey Murphy by deed bearing date the 26th day of May, 1942. No reservation of the timber was made in the deed from Harvey Murphy and wife to Sturm, but the deed contains the following: 'It is understood that all oil and gas has been hereby reserved by M. F. Crowley.'
Sturm and wife conveyed the surface of said tract of land to L. R. Kerby by deed dated March 10, 1943, reserving, 'all merchantable timber for a period of ten years from the date of this deed with the right to enter upon this land and remove such timber without damages.'
No demand was ever made on Martin F. Crowley or Margaret L. Crowley by the owners of the surface to cut and remove the timber. Some timber was cut and removed from the land by Martin F. Crowley in the years 1933 and 1934, and a few additional trees were cut and removed by the agents of Mrs. Crowley in the year 1936.
It is disclosed by the record that about eighteen months before he purchased from Murphy, the plaintiff went to the City of Parkersburg and there inquired of a brother of Mrs. Crowley whether she owned the timber on the tract of land in question. Mrs. Crowley's brother informed plaintiff that she still owned and claimed the timber.
A short time before the institution of this suit, the defendant O'Connor, agent and employee of Mrs. Crowley, cut five trees on the land, which action apparently precipitated plaintiff's institution of this suit to enjoin defendants from cutting and removing the timber, and to avoid the reservation made in the deed of November 27, 1926, as constituting a cloud on plaintiff's title to the timber.
The pleadings and evidence presented two questions for decision by the trial court, which are the only questions presented on this appeal to this Court. They are: (1) Was the timber abandoned by Martin F. Crowley or Margaret L. Crowley; and (2) has the title of Margaret L. Crowley to the timber been divested by reason of the lapse of an unreasonable time from the date of the deed by which it was reserved?
Upon consideration thereof, the trial court by a final decree dissolved the temporary injunction theretofore granted; adjudged that the title to the timber is now vested in Margaret L. Crowley; and dismissed the plaintiff's bill of complaint, awarding costs to defendants.
It is definitely established by testimony that Martin F. Crowley and the defendant, Margaret L. Crowley, cut and removed timber from the tract of land during the interval between the years 1933 and 1936, without objection on the part of the owners of the surface of the land. Plaintiff on his trip to Parkersburg, in December, 1940, was informed by the brother of Margaret L. Crowley that she asserted ownership of the timber. Furthermore, there is some testimony by Margaret L. Crowley indicating that she had paid the taxes on all the land which she owned in Calhoun County, which, we assume, would include the timber on the tract involved in this suit. The agents and employees of Margaret L. Crowley entered on the land and cut and removed the timber therefrom in the year 1944. The foregoing circumstances are inconsistent with the idea of relinquishment of the title to the timber or abandonment thereof by Martin F. Crowley or Margaret L. Crowley. The allegations of abandonment made by plaintiff are not sustained by proof. The finding of the trial court in that respect is without error and accordingly is affirmed.
A correct determination of the second question calls for an inquiry as to the bases of the conflicting claims of title to the timber. The title to the timber on the land was released and excepted in the conveyance from the Crowleys to the Watkinses in the manner hereinbefore stated. Although more appropriate language could have been used, it is clear that Crowley made thereby a reservation of the timber and surface rights pertinent thereto. I Devlin on Real Estate, 3rd Edition, Section 221; McDougal v. Musgrave, 46 W.Va. 509, 512, 33 S.E. 281; Adkins v. Huff, 58 W.Va. 645, 650, 52 S.E. 773, 3 L.R.A.,N.S., 649, 6 Ann.Cas. 246.
Before discussing the second question hereinbefore stated, it is noteworthy that some of the cases applicable thereto use somewhat interchangeably, the words 'condition', 'defeasan...
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