Webber v. Proctor

• Decision Date: 24 December 1896
• Citation: 89 Me. 404,36 A. 631
• Parties: WEBBER v. PROCTOR et al.
• Court: Maine Supreme Court

36 A. 631

89 Me. 404

WEBBER

v. PROCTOR et al.

Supreme Judicial Court of Maine.

Dec. 24, 1896.

(Official.)

Report from supreme judicial court, Aroostook county.

Action by John P. Webber, against Henry H. Proctor and another. Judgment for defendants.

C. P. Stetson and H. L. Mitchell, for plaintiff.

P. A. & D. A. Powers and D. Lewis, for defendants.

FOSTER, J. Action of trover to recover the value of 120 cords of hemlock bark. The plaintiff claims title to the same under a warranty deed from Lucien B. Grout and wife to him, dated July 19, 1881, conveying "all the hemlock bark and one-half of the hemlock logs on the following described land, situated in Sherman aforesaid, to wit, lot numbered seventy-two, containing one hundred four and 28-100 acres, more or less, with the right to enter upon said lot of land at any and all times during the term of ten years, to cut any trees, and make necessary roads to remove said hemlock bark and hemlock trees or logs from the land, during the term aforesaid, without being liable for trespass; also, all the hemlock bark, of every description, on the following described land, situated in said Sherman aforesaid, to wit, lot numbered one hundred and thirty-nine, excepting land owned by A. T. Robinson in said lot, meaning all the hemlock bark on land conveyed to Lucien B. Grout by Joseph H. Dolley, May 14th, 1878, containing seventy-five acres, more or less, with the right to enter upon said land at any and all times during the term of five years from March 30, 1882, to cut any trees, and make necessary roads to remove said hemlock bark from the land, without being liable for trespass during term aforesaid; reserving the right to peel and yard the hemlock bark on such land as we wish to clear for farming purposes for said Webber, for which the said Webber is to pay two dollars per cord tannery survey for so peeling and yarding said bark into the clearing where we can protect it from fires from the choppings, all the work being done in a workmanlike manner." Habendum: To him, his heirs and assigns, forever.

The time limit in the deed expired long before the summer of 1894, at which time the bark in question was cut and removed by parties under whom the defendants claim by purchase, and who had all the rights of the grantors in the bark, logs, and land which the grantors had subsequent to their deed to the plaintiff.

Whatever rights the plaintiff might have had in bark peeled or timber cut prior to the expiration of the time mentioned in the deed, but not removed from the land, as in Plummer v. Prescott, 43 N. H. 277, it is unnecessary to consider, as no such facts appear in the case.

The plaintiff's claim is that the property in the bark and logs still remains in him, notwithstanding the expiration of the five and ten years mentioned in the deed, and that he can maintain trover for their conversion, or enter and remove the same, although liable in trespass for damages in so doing.

The question to be determined is one of title, and the rights of the parties, therefore, must depend upon the construction to be given to the deed under which the plaintiff claims.

Such a construction as is contended for by the plaintiff, that it was an absolute sale of all the bark and one-half the logs upon the land, and not merely such as might be peeled, cut, and taken off within the periods mentioned, would be to disregard the true intent and meaning of the parties, as evidenced by the language of the deed. We do not think the plaintiff had any title or interest in the bark or logs which remained unappropriated after the respective limits of five and ten years. The plaintiff had been granted all the hemlock bark and one-half the hemlock logs on one lot, and all the hemlock bark on another. If this grant had stopped here, and these periods of time had not been inserted in the deed, there could be no question that, as incident to the grant, there would have passed the right to enter and cut trees, and make roads...