Sun Lumber Co. v. Thompson Land & Coal Co.

• Decision Date: 16 June 1953
• Docket Number: No. 10493,10493
• Citation: 138 W.Va. 68,76 S.E.2d 105
• Court: West Virginia Supreme Court
• Parties: SUN LUMBER CO. v. THOMPSON LAND & COAL CO.

Page 105

76 S.E.2d 105

138 W.Va. 68

SUN LUMBER CO. v. THOMPSON LAND & COAL CO.

No. 10493.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1953.

Decided March 17, 1953.

Dissenting Opinion April 9, 1953.

Rehearing Denied June 16, 1953.

Syllabus by the Court.

1. An agreement conveying standing timber to be cut and removed within a period of five years, with the right to extend such period from year to year, not exceeding an additional five years, upon payment of a valuable consideration, creates a defeasible fee in the timber with an option to extend the period for the removal of the timber by compliance with the terms of the agreement.

2. An option will be strictly construed in favor of the party bound, and an option to extend the time for removal contained in a conveyance of standing timber will, unless peculiar circumstances have intervened, be construed as requiring payment in advance of the desired period of extension.

3. An option is a mere personal right, not an interest, and, as such, it differs materially and essentially from a conditon subsequent capable of working a forfeiture.

4. Forfeiture, in its broad meaning, is the loss of a vested interest in consequence of a breach of duty, and, where, under an agreement conveying standing timber, the grantee's right of entry has expired by the terms thereof, he has nothing to forfeit.

John H. Fox, Sutton, Herbert M. Blair, Weston, for appellant.

B. C. Eakle, Clay, Osman E. Swartz, Charleston, for appellee.

BROWNING, Judge.

The Sun Lumber Company instituted this suit in equity in the Circuit Court of Clay County praying to be relieved of a claimed forfeiture of a certain agreement, dated July 14, 1944, and for an injunction restraining defendant from interfering in any way with plaintiff's rights under that agreement. The defendant, the Thompson Land & Coal Company, demurred to the bill on the grounds that : (1) Plaintiff had an adequate remedy at law; and (2) the bill did not state sufficient grounds for relief, it appearing from the bill that any injury sustained by plaintiff is due to its own negligence.

The bill of complaint, as amended, sets forth that the defendant entered into an agreement with one G. G. Gillespie, dated July 14, 1944, by which it 'sold and doth grant and convey' all timber of certain size located upon defendant's lands in Union District, Clay County, the instrument containing this language:

'Second party is to have five years from the date hereof in which to cut and remove said timber from said lands, with the right to extend such time, from year to year, not exceeding an additional five years, upon payment to first party of the sum of $75.00 per year for each annual extension.'

There was also a provision that, at the expiration of the agreement, all timber, whether cut over or not, and all buildings and improvements would revert to and become the property of the first party, its successors or assigns.

Subsequently, Gillespie entered into an agreement with plaintiff, dated October 31, 1944, identical with the original instrument, except as to dates and parties, and containing the same words 'five years from the date hereof * * *.'

The bill then alleges that the plaintiff, not having considered it practical to remove the timber during the original five year period, forwarded a check in the amount of $75 to defendant in July, 1948, for the purpose of extending its rights to cover the year July, 1949 to July, 1950, which check was accepted and used by the defendant. The plaintiff, again having found it impractical to remove the timber during that year, decided to avail itself of an additional extension, but due to an oversight on the part of its personnel, perhaps a result of the misleading date, October 31, 1944, on the second agreement their check in the amount of $75, covering the extension, was not issued until September 14, 1950. This check was returned by defendant with the notation:

'It is our position that all rights under the G. G. Gillespie timber contract terminated July 14, 1950. * * * Should you cut or remove any of the timber you will be liable as a trespasser.'

The court sustained defendant's demurrer, the plaintiff filed an amended petition to which defendant demurred on the original grounds, and the court again sustained the demurrer. The plaintiff declining to further amend, an order was entered dismissing the bill, from which order this Court granted an appeal and supersedeas on June 2, 1952.

In considering this case, it is of primary importance to determine the nature of the instrument that was executed between the parties. It is referred to in the bill of complaint as an agreement, and in briefs of counsel as a contract, lease and deed of conveyance. The decisions of this Court and those of other jurisdictions have rather clearly established that such an instrument is a conveyance of the timber growing upon the land of the size designated, and that it vests a defeasible fee in the grantee. 18 M.J., Trees and Timber, § 14, in giving the West Virginia rule quotes from Adkins v. Huff, 58 W.Va. 645, 52 S.E. 773, 774, 3 L.R.A.,N.S., 649, as follows: 'The authorities are practically uniform in holding that an instrument granting standing timber, and containing a clause requiring or permitting it to be removed within a specified time from the date of the grant, gives no absolute and unconditional title to the property. Some courts hold the right of the grantee to be a license, others a lease, and others a defeasible title to the timber. By the great weight of authority it is determined that no right or title exists in the grantee after the expiration of the time specified in the deed or contract.'

We find this statement in Keystone Lumber & Min. Co. v. Brooks, 65 W.Va. 512, 514, 64 S.E. 614: 'In case of a conveyance of timber, with a time limit requiring its removal from the land in a given time, the weight of authority is that the conveyance is conditional; the purchaser taking only what timber shall be removed within that time, and the balance reverting to the owner of the land, or rather remaining his.' There was, as heretofore stated, a definite and unqualified reversion clause in the instrument in controversy in this suit.

Although it might be argued that there is a lack of complete harmony in the West Virginia cases dealing with this subject, a careful scrutiny of the cases indicates that the disharmony, if any exists, relates to those cases in which there is a conveyance of the standing timber or a reservation thereof by the owner in conveying the surface with no time limit for the removal of the timber. In Carder v. Matthey, 127 W.Va. 1, 32 S.E.2d 640, 643, a case involving a reservation of the timber with no specified time for removal, the Court held that twenty years was not an unreasonable time within which the grantee could remove timber from the land, but Judge Fox in the majority opinion stated: 'We do not question the rule laid down in Hill v. Vencil [90 W.Va. 136, 111 S.E. 478] and subsequent cases cited above; but even so, the question of whether a person should lose his right under the rule announced therein depends on the facts of the case. No fixed period of time is or can be laid down for all cases. In the case at bar approximately twenty years passed from the date of the deed in question and the institution of this suit. If we had before us a simple exception of the timber, without specification of time for removal, and nothing more, it might be said that, under the rule announced in the cases above considered, the defendants had lost title thereto; * * *.'

In contract is the agreement between the parties in Lange & Crist Box & Lumber Co., Inc., v. Haught, 132 W.Va. 530, 52 S.E.2d 695, 696, which provided that the purchaser would 'log and remove all timber covered and conveyed by this deed on or before the 18th day of November, 1946', the deed having been executed on July 11, 1945. There were 246 acres of timber involved in that transaction. This Court held in a unanimous decision, the opinion being written by Judge Haymond, that: 'Under a written agreement between the landowners and a purchaser which, for a cash consideration, conveys standing timber but requires its removal from the land on or before a specified day and expressly provides that at that time the agreement shall become null and void, the title to the timber, acquired by the purchaser or a grantee of the purchaser, is defeasible by failure so to remove it, and after the final day prescribed for its removal such grantee has no right or title to the timber, including that previously severed but not removed from the land.'

The facts in the Virginia case of Hartley, v. Neaves, 117 Va. 219, 84 S.E. 97, very closely parallel those in this case. The parties there agreed that the grantees should have five years in which to cut and remove the timber, and that if it was not removed within the initial period, the grantees should have an additional time, not to exceed five years, for the removal upon payment of $15 a year for the additional time. No timber was cut within the first five year period, nor was any offer made to pay the sum designated for the extension time, until more than ninety days had lapsed after the expiration of the first five year period. The Virginia court, upon that state of facts, held: '* * * the grantees were bound to make payment and request extension before the expiration of the first five-year period, and, not having done so, their rights under the deed were lost.'

It will be observed that in the instant case, the grantee had exercised its privilege of renewing beyond the initial five year period, and had made a payment of $75 which covered the first additional annual period beyond the initial five year period, that is from July 14, 1949 to July 14, 1950. The Court is unable to distinguish a case in which there is a failure upon the part of a grantee to extend the time...