United Timber Corp. v. Bivens

• Decision Date: 07 October 1919
• Docket Number: 1685,1698.
• Citation: 264 F. 308
• Parties: UNITED TIMBER CORPORATION v. BIVENS. [1] BIVENS v. UNITED TIMBER CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

264 F. 308

UNITED TIMBER CORPORATION v. BIVENS. ^[1]

BIVENS v. UNITED TIMBER CORPORATION.

Nos. 1685, 1698.

United States Court of Appeals, Fourth Circuit.

October 7, 1919

L. D Lide, of Marion, S.C., and Legare Walker, of Summerville S.C., for United Timber Corporation.

Thomas M. Boulware, of Barnwell, S.C., and Julian Mitchell, of Charleston, S.C., for Joseph Bivens, Sr.

For opinion below, see 253 F. 968.

See also, 248 F. 554.

Before PRITCHARD and KNAPP, Circuit Judges.

KNAPP Circuit Judge.

Although one of these cases is an action at law and the other a suit in equity, they both involve substantially the same facts and may be disposed of in one opinion.

Joseph Bivens, Sr., plaintiff below in the law action and defendant in the equity suit, is the owner of a number of tracts of land in Dorchester county, S.C., subject to certain timber rights which were granted before he acquired the title. These grants were all made, or may be treated as made, on the 14th of April, 1902, and all of them contain this provision:

'That the said second party, his heirs or assigns, shall have, and the same is hereby granted to him or them, the period of 10 years, beginning from the date hereof, in which to cut and remove the said timber from the said land, and that in case the said timber is not cut and removed before the expiration of said period, then that the said second party, his heirs or assigns, shall have such additional time therefor as he or they may desire, but in the last-mentioned event the said second party, his heirs or assigns, shall, during the extended period, pay interest on the original purchase price above mentioned, year by year in advance, at the rate of 6 per cent. per annum.'

No timber was cut on any of the tracts within ten years from the date of the grants. The 14th of April, 1912, fell on Sunday, and on the following day the Oneida Timber Company, which then owned the rights in question, served written notices on Bivens, one for each grant, to the effect that it desired the additional period of 15 years in which to cut and remove the timber, and at the same time tendered to him the sum of 6 per cent. on the original purchase price of the grants. Upon his refusal to accept the same the money was paid into court, and he so notified. The like tender was made on the 14th of April of each succeeding year, and with the like result.

In September, 1917, the appellee, United Timber Corporation, which had acquired the grants in the previous November, commenced cutting operations on one of the tracts, known as 'Blue House,' containing some 1,579 acres. Thereupon Bivens brought an action against it for trespass, claiming damages in a large amount. The appellee in answer set up its ownership of the grant covering that tract and asserted its right to cut and remove the timber therefrom. In December following, and before Bivens' action was tried, the appellee filed its bill of complaint herein, setting up in detail the facts above summarized, averring its title to the timber on all the tracts embraced in the several grants, and its right to cut and remove the same, and asking in substance that defendant be enjoined from interfering in any way with the exercise of that right. On motion for a temporary injunction the court below declined to enjoin the action that Bivens had brought, but did restrain him from bringing any further actions. In his answer to the equity suit he appears to admit the specific facts alleged in the bill, but denies that they have the legal effect contended for by complainant.

We may here dispose of the contention which is pressed in both cases, that the tender to Bivens, in connection with the notice of a desire for an extension of 15 years, was made too late, because the 10-year period named in the grants 'beginning from the date hereof,' expired on the 13th of April, 1912. It is conceded that, if a tender on the 14th would have been in time, the tender actually made on the 15th was also in time, since the 14th was Sunday. The question whether the 10-year period came to an end on the 13th, or not until the 14th, is fully discussed, and the leading authorities reviewed, in the opinion of the learned District Judge in the equity suit (253 F. 968), and nothing needs be added to what he has said. We agree with his conclusion, which appears to be supported by practically all the modern decisions, that the time in dispute was properly computed by excluding the date on which the grants were executed, and that, so computed, the tender was obviously made before the expiration of...