Walters v. Sheffield

• Decision Date: 05 April 1918
• Citation: 75 Fla. 505,78 So. 539
• Parties: WALTERS v. SHEFFIELD.
• Court: Florida Supreme Court

78 So. 539

75 Fla. 505

WALTERS v. SHEFFIELD.

Florida Supreme Court

April 5, 1918

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

Ejectment by J. S. Sheffield against H. W. Walters. Judgment for plaintiff upon a directed verdict, and defendant brings error. Affirmed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Where in a deed of conveyance of land the grantors 'reserved unto themselves and from the operation of the deed, all the timber of any kind and nature, standing on said land,' the grantee takes no title to the timber standing on the land; and, where the deed of conveyance or the attending circumstances do not indicate a purpose to remove the standing timber from the land, the owner thereof does not lose title thereto by mere failure to remove the standing timber.

Ejectment is an appropriate remedy to recover the possession of standing timber by the person entitled to its possession.

COUNSEL Davis & Diamond, of Perry, for plaintiff in error.

Wm. T Hendry, of Perry, for defendant in error.

OPINION

WHITFIELD J.

The declaration herein, filed April 7, 1916, is as follows:

'Comes now J. S. Sheffield, by W. T. Hendry, his attorney, and sues H. W. Walters in an action of ejectment, because the defendant is claiming adversely all the timber of any kind and nature standing on the E. 1/2 of the N.E. 1/4 of section 12, in township 3 south, of range 5 east, containing 80 acres, more or less, and situate, lying and being in Taylor county, Fla.

'And the defendant has received the profits of said timber since the 1st day of January, 1915, of the yearly value of $25, which defendant refuses to pay to the plaintiff, and plaintiff alleges further that the defendant has cut and destroyed trees and timber standing and being on said land to the damage of plaintiff.

'Wherefore, plaintiff sues and claims $200.'

Defendant demurred on the grounds that:

'First. Ejectment will not lie under the laws of the state of Florida for timber, against one in possession of the land.

'Second. Ejectment for timber, where the said timber is claimed by two different parties, is not the proper remedy.

'Third. Ejectment will not lie for the timber upon land.'

This demurrer was overruled, and the defendant pleaded not guilty. At the trial the court directed a verdict for the plaintiff. The verdict and judgment rendered thereon are as follows:

'This cause came on this day to be further heard, and the plaintiff praying judgment upon the verdict rendered herein this term of the court, on the 26th day of September, A. D. 1916, as follows, to wit:

'Perry, Fla., September 26th, 1916.

'We, the jury, find for the plaintiff and find that the fee-simple title to the timber described in the declaration, to wit: All the timber of every kind and nature standing on the tract of land, to wit: East half (E.1/2) of northeast quarter (N. E. 1/4) section twelve (12), township three (3) south, range five (5) east, in Taylor county, Florida, on the 25th day of November, A. D. 1909, is and was at the institution of this suit in the plaintiff, and further that the plaintiff was entitled to the immediate possession of said timber at the institution of this suit, and is entitled to recover the same from the defendant, so say we all.

'William J. Mixon, Foreman.

'Thereupon, it is considered, ordered, and adjudged that the plaintiff, J. S. Sheffield, is and was at the institution of this action the owner in fee simple and entitled to the possession of all the timber of any kind and nature standing on the east half of northeast quarter of section 12 in township 3 south, of range 5 east, containing 80 acres, more or less, situate, lying, and being in Taylor county, Fla., on the 25th day of November, A. D. 1909.

'And further, that the plaintiff recover of and from the defendant the possession of said timber, and that he have his writ of habere facias possessionem issued hereupon; and it is further ordered that the plaintiff do have and recover of and from the defendant his cost in this behalf expended, as taxed by the clerk of this court at ----- dollars and ----- cents.

'Considered, ordered, and adjudged in open court, this the 26th day of September, A. D. 1916.

M. F. Horne, Judge.'

Defendant took writ of error.

The plaintiff obtained a patent for the land from the United States, and on August 11, 1905, the patentee, J. S. Sheffield, and his wife conveyed to G. R. Battle 'all that certain parcel of timber lying and being in the county of Taylor, and state of Florida, and more particularly described as follows: The east half (1/2) of northeast quarter of section twelve, township three (3) south of range five (5) east, containing eighty acres, more or less. This deed is to include all the timber from 12 inches up at stump for sawmill purposes and all timber for turpentine purposes on the above-described land, and privilege of tramways, etc., for purpose of working said timber, and same is to be in force for the term of ten years from date.'

On November 25, 1909, J. S. Sheffield and his wife conveyed to Joseph Sheffield in fee simple 'all that certain parcel of land lying and being in the county of Taylor and state of Florida, and more particularly described as follows: The east half of the northeast quarter of section twelve (12) in township three (3) south, range five (5) east, containing eighty (80) acres, more or less. * * * The said parties of the first part reserve unto themselves, and from the operation of this deed, all the timber of any kind and nature, standing on said land, together with all the tenements, hereditaments, and appurtenances, with every privilege, right, title, interest and estate, dower and right of dower, reversion, remainder, and easement thereto belonging or in any wise appertaining: To have and to hold the same in fee simple, forever.'

Joseph Sheffield conveyed on May, 23, 1910, to Henry B. Sheffield.

Henry B. Sheffield and wife conveyed on January 30, 1911, to W. H. Chester. On October 18, 1912, W. H. Chester and wife conveyed to W. H. Walters, the defendant herein, in each conveyance the description and reservation or exception being 'all that certain parcel of land lying and being in the county of Taylor and state of Florida and more particularly described as follows: The east half of the northeast quarter of section twelve (12) in township three (3) south of range five (5) east, containing eighty (80) acres, more or less. The said parties of the first part reserve unto themselves and from the operation of this deed all the timber of any kind and nature standing on said land.'

The manifest purpose of the deed from J. S. Sheffield and wife to Joseph Sheffield was to convey to the grantee all the described lands, together with all the tenements, hereditaments, etc., reserving or excepting unto the grantors and from the operation of the deed 'all the timber of every kind and nature standing on said land.' Thus read, the express reservation or exception of the standing timber is not uncertain, nor is it inconsistent with or as broad as the conveyance of the land 'together with all the tenements, hereditaments and appurtenances, with every privilege, right, title, interest and estate * * * thereto belonging or in any wise appertaining.'

The conveyance from J. S. Sheffield and wife to G. R. Battle on August 11, 1905, covered 'all the timber from 12 inches up at stump for sawmill purposes and all timber for turpentine purposes on the * * * described land * * * for the term of ten years from date.'

In conveying the land on November 25, 1909, J. S. Sheffield and wife 'reserved unto themselves and from the operation of the deed, all the timber of any kind and nature, standing on said land.' In subsequent mesne conveyances of the land reaching to the defendant, the same reservation was made from the operation of the deeds 'all the timber of any kind and nature standing on said land.' The estate or interest in the timber thus reserved in comprehensive terms remained in J. S. Sheffield, the plaintiff, and at the expiration of 'the term of ten years' from August 11, 1905, which was the life of the timber rights conveyed by J. S. Sheffield and wife to G. R. Battle, the plaintiff, J. S. Sheffield held the title he had reserved in his conveyance of the land to Joseph Sheffield on November 25, 1909, to 'all the timber of any kind and nature standing on the land'; and this title to a freehold interest in the standing timber on the land was then after August 11, 1915, free of the previous interest of G. R. Battle in the timber conveyed to him by J. S. Sheffield on August 11, 1905. Title to standing timber is an interest in the land. Richbourg v. Rose, 53 Fla. 173, 44 So. 69, 125 Am. St. Rep. 1061, 12 Ann. Cas. 274; 17 R. C. L. 1066 et seq. A fee-simple title to standing timber with no obligation...