E. W. Gates Lumber Company v. Britton
| Decision Date | 14 July 1913 |
| Citation | 105 Miss. 592,62 So. 648 |
| Court | Mississippi Supreme Court |
| Parties | E. W. GATES LUMBER COMPANY v. D. L. BRITTON |
March 1913
APPEAL from the circuit court of Wayne county, HON. JOHN J. BUCKLEY Judge.
Suit by D. L. Britton against the E. W. Gates Lumber Company.
From a judgment for plaintiff, defendant appeals.
Appellee was plaintiff in the court below, and appellant was defendant. This was an action in replevin, begun by plaintiff in the court of a justice of the peace for possession of four hundred and fifty saw logs cut from a certain tract of land. A judgment was obtained in that court, and on appeal to the circuit court and trial de novo, plaintiff again obtained judgment for the sum of one hundred and eighty dollars, the agreed value of the logs, from which this appeal comes.
On February 6, 1901, plaintiff and his wife executed the following timber deed:
Afterwards through mesne conveyances the E. W. Gates Lumber Company acquired the title to the timber rights, and proceeded in September, 1911, to cut the logs, whereupon this suit was begun; it being the contention of the plaintiff that the right to cut and remove the timber had been lost, because not exercised within a reasonable time, more than ten years having elapsed since the execution of the deed, and that it was the intention of the parties that the right conveyed should be exercised within a reasonable time, and not continue indefinitely.
On the trial both sides asked a peremptory instruction, and the court granted one for the plaintiff, and refused defendant's.
Reversed.
Granade & Granade, for appellant.
The deed to the saw log timber by D. L. Britton and I. A. Britton to the Yellow Pine Lumber Company is a legal deed. Code of Mississippi of 1906, section 2769. The habendum clause is not necessary to the validity of a deed of this kind. 74 Miss 158.
Even though the deed was not a warranty deed, yet it was sufficient to pass all title to the timber on the said land and estop the grantor and his heirs from asserting any further title. Code of Mississippi of 1906, section 2767.
In the case of Hall v. Eastman-Gardiner Company, the facts were entirely different from those in this case and would have no application to the construction or effect of the writing executed by Britton to Yellow Pine Lumber Company. Hall v. Eastman-Gardiner Co., 89 Miss. 588.
Under the laws of Mississippi, it is well settled that a deed to timber carries an interest in the land as well as the timber making it real estate until it is actually severed. Butterfield Lbr. Co. v. Guy, 46 So. 78.
This is also the well- established law in the state of Alabama. Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465; Zimmerman v. Daffin.
A deed to timber, under the laws of Mississippi, containing no reservation, the timber being considered a part of a realty until the same is severed, is not subject to the statute of limitations of ten years, or any other proceedings, as the grantee would take such title and rights as would allow him to remove the timber at any time that he might see fit. Butterfield Lbr. Co. v. Guy, 46 So. 78, 92 Miss. 361.
It is further decided in the case of Butterfield Lumber Company v. Guy, that the mere fact that the party making the deed made an improvident contract, did not affect the validity of the same, nor the rights thereunder; also, that real estate is susceptible of this ownership as to its different parts, and that one party may own the land, another the trees, and others different interests such as mineral substance beneath the lands. Butterfield Lumber Co. v. Guy, 46 So. 78.
It has now become settled law in a number of states, among them being the state of Mississippi, that a deed to timber carries an interest in the land, and where there are no reservations, the title to the timber is absolute, and without limitations as to time. Harrell v. Miller, 35 Miss. 701; McKenzie v. Shows, 70 Miss. 388; Fox v. Pearl River Lumber Co., 80 Miss. 1; Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465, 15 So. 632; Zimmerman v. Daffin, 149 Ala. 380; Hefflin v. Bingham, 56 Ala. 566; Harrell v. Mason, 54 So. 185; Hoit v. Stratton Mills, 54 N.H. 109; Benedict v. Torrant, 11 L. R. A. (Mich.) 278; Mee v. Benedict, 22 L. R. A. (Mich.) 641; Patterson v. Graham, 164 Pa. 234.
M. L. Heidelberg and W. M. McAlister, for appellee.
The appellant in this cause claimed the right to cut the timber involved in this suit by virtue of a timber deed, executed by appellee and his wife on the day of February, 1901, to the Yellow Pine Lumber Company, and which deed is a part of the record in this cause. Appellant claims that this deed gave the grantee therein and its assigns a perpetual right to enter upon the land described in the said deed, and to cut and remove from the land the timber sued for in this cause. That is to say, that the deed in question conveys a fee simple title to the timber in question. Appellee contends that the said deed does not convey a fee simple title to the timber, but that it only conveyed the right to the saw log timber growing on the land at the time of the execution of the deed, with the right to cut and remove the same within a reasonable time.
A primary rule for the construction of deeds is that "the intent must be gathered from a fair construction of the entire instrument, and the language employed therein, and should be consistent with the terms of the deed, including its scope and subject-matter." 13 Cyc., 604. "Some meaning should be given to every clause, word and expression, if it can reasonably be done, and is not inconsistent with the general intent of the whole instrument, so that the deed may operate, if by law it may, according to the intention of the parties." 13 Cyc., 605.
In the instrument before us we have the following words, clauses and sentences to be construed, to wit: "Sell," "All the saw log timber," "Cart road and railroad privileges," "And will protect said timber from fires and trespassers until the said timber is cut from the said land," and, "If I sell, or cause to be sold the said land, I will reserve all saw log timber on said land for the Yellow Pine Lumber Company." Appellant insists that the word sell in itself carries a fee simple title, thus making the meaning of the whole instrument to hinge on one word, and by so doing, violating the principle laid down by the courts for the construction of deeds. If this principle, insisted on by appellant, is true, then appellee can very well reply by saying that the deed conveys saw log timber only; and that a saw log, according to the decision of the courts of last resort means a heavy piece or stick of wood, or body of a tree, cut at convenient length to be sawed into lumber. Rowan v. Carlton, 56 So. 329; Burkholder v. Union Trust Co., 82 Mo. 572-576; State v. Addington, 121 N.C. 538-540, 27 S.E. 988. But we wish to be fair in the discussion of this matter, and will say that we think the parties to this deed in using the word log meant standing timber; for in one of the sentences above, quoted from the deed, it is said that the grantor, the appellee, should protect the timber from trespassers and fires until it was cut from the land. It should be noticed that appellee obligated himself to protect the timber from fires and trespassers. But for how long? Evidently not for such a length of time as would be implied by a conveyance in fee simple; because that idea is negatived by the words "Until the timber is cut from the land," showing conclusively that the parties to this deed had in mind the removal of this timber within a reasonable time. Then it would be unreasonable to suppose that any man in his right senses would, for the paltry sum of fifty-five dollars, obligate to protect timber from trespassers and fires for a long, indefinite period of time, and at the same time accept the money as full consideration for his timber. Then the appellant asked for cart road and railroad privileges over the land and had it incorporated in the deed. This shows beyond doubt that the purpose was to cut and remove this timber, and that both the appellant and the appellee so understood. It should also be noticed that the appellant obligated the appellee to reserve his right to the timber in the event that he, appellee, should convey the land to other persons. This also shows that the parties had in mind the cutting and removal of this timber. And then some reasonable construction should be placed on the words "Saw log timber." Why not say all timber, if a fee simple title was intended to be conveyed by this deed? What is saw log timber today will, doubtless, remain saw log timber, but on every piece of timbered land there is a large amount of timber not fit for use as saw logs, not large enough; but in the course of years would grow into saw logs. According to appellant's contention he is entitled to all the timber on this land as fast as it grows into saw log timber. Thus by his construction he would change this phrase to mean all the timber growing on the land at the time of the execution of the deed, and all the timber that might hereafter grow on the same. The very words...
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