West Yellow Pine Co. v. Sinclair

• Citation: 90 So. 828,83 Fla. 118
• Parties: WEST YELLOW PINE CO. v. SINCLAIR et al.
• Decision Date: 27 January 1922
• Court: United States State Supreme Court of Florida

90 So. 828

83 Fla. 118

WEST YELLOW PINE CO. v. SINCLAIR et al.

Florida Supreme Court

January 27, 1922

Suit by the West Yellow Pine Company against C. W. Sinclair and wife and another. From a decree thereon, plaintiff appeals.

Affirmed.

(Syllabus by the Court.)

Appeal from Circuit Court, Madison County; M. F Horne, judge.

COUNSEL

E. J. L'Engle and P. L. Gaskins, both of Jacksonville, and R. H. Rowe, of Madison, for appellant.

Chas E. Davis, of Madison, for appellees.

OPINION

WEST J.

The object of this suit is to have construed a certain deed of indenture and to determine the rights of the parties thereunder.

On June 25, 1910, and prior to that date, Fannie Sinclair, wife of C W. Sinclair, owned in fee simple certain lands in Madison count. The tract so owned consisted of several thousand acres. On the date named, she, the said owner, by certain indenture in which her husband joined, granted and conveyed to R. L. Dowling, of Suwannee county, 'all the trees and timber measuring twelve (12) inches in diameter and up at the stump, said measurement to be made eighteen (18) inches from the ground, standing and fallen, lying and being situate' on said land, together with the right of ingress and egress to, over, across and from said laid 'for the period of fifteen (15) years next immediately succeeding the date' of the conveyance for the purpose of cutting, removing, and manufacturing the timber so conveyed.

On the same date, R. L. Dowling, the said grantee, did assign, grant, and convey to the West Yellow Pine Company the said indenture and all right, title, and interest acquired and owned by him in said timber, together with all rights and privileges mentioned and conferred in the contract of conveyance from Sinclair and wife to Dowling; said West Yellow Pine Company assuming and agreeding to faithfully perform and carry out all obligations contained in said indenture to be performed by said grantee in accordance with the terms thereof.

The conveyance from the Sinclairs to Dowling contains the following provision with respect to the cutting and removal of the timber thereby conveyed:

'It is further understood and agreed that any tract of timber shall be but once cut over, and when the cutting privilege is once exhausted on any forty or other larger tract of land the party of the second part shall immediately surrender said tract or tracts to the parties of the first part, excepting and reserving to the party of the second part, his heirs and assigns a right of way over said land so surrendered for teams, carts, laborers and log landings and log roads during the unexpired term of the lease covering such surrendered land or lands.'

On March 1, 1916, Fannie Sinclair and C. W. Sinclair, the grantors, conceiving from their interpretation of the provisions of said indenturee that the rights of the grantee and his assigns to enter upon certain portions of the land described and cut and remove the timber so conveyed therefrom to have been exhausted and that they, the grantors, were entitled to have such land surrendered to them, did by their representative, J. C. High, enter thereon and commence to cut and remove therefrom certain timber remaining upon such land.

Thereupon, on the theory that the contract of conveyance was not susceptible of the construction placed upon it by the grantors, the West Yellow Pine Company, the complainant, brought this suit against C. W. Sinclair, and Fannie Sinclair, his wife, and J. C. High, defendants, and by its bill alleges in substance that under the terms of the conveyance it, the complainant, has the right to enter upon and cut and remove all of the timber of the sizes and dimensions described on any particular tract or portion of such land, and that its operations on such tract or portion are not thereby required to be continuous until completed; that it has the right to enter upon any such tract or portion of such land and cut and remove the timber so conveyed therefrom as often and at such times as it may choose; that it may first cut and remove the pine timber from any tract or portion of the land and afterwards return and cut and remove the cypress timber therefrom; that its right to enter upon the land or any tract or portion of it and cut and remove therefrom the timber so conveyed is restricted only by the 15-year period expressed in the conveyance and by the quantity of the timber of the sizes and dimensions conveyed that may be found to exist on any particular tract or portion of such land; that defendants' entry upon the land and their cutting of timber thereon were therefore unauthorized and unlawful and should be enjoined.

The prayer is for an injunction, a construction of the contract of conveyance, an accounting for general relief.

The defendants by answer to the bill aver that under the terms of the contract of conveyance when the complainant has once cut over any particular tract or portion of said land and has discontinued cutting on such tract or portion and ceased operation thereon, although it may not have cut and removed therefrom all the timber of the sizes and dimensions conveyed, its rights thereon, except as to ingress and egress, are exhausted, and it has no right thereafter to return and enter upon any such tract or portion of said land and cut and remove any timber therefrom, although there may still remain upon such tract or portion of land timber of the sizes and dimensions to which it was originally, under the terms of the contract of conveyance, entitled; that the land upon which defendants had entered and from which they were cutting and removing timber was land which had been once cut over by complainant and as to which its cutting privilege was exhausted; that complainant had no right to any timber which might then remain upon such land although of the sizes and dimensions described in the contract of conveyance; and that such land was, under the terms of the conveyance, surrendered back to defendants exempt from any timber or cutting privilege to complainant and free from any right of complainant thereunder except the right of ingress and egress during the unexpired portion of the 15-year period within which all the timber so conveyed was required to be cut and removed.

Testimony was taken, and upon final hearing a decree was entered finding 'that, under the terms and provisions of the timber deed and lease made by the defendants C. W. Sinclair and his wife to R. L. Dowling and assigned to and now held by the complainant, as mentioned and described in the bill of complaint, it was expressly understood and agreed therein by the parties thereto that any tract of timber should be once cut over, and when the cutting privilege was once exhausted on any forty or larger tract of said land, the said R. L. Dowling, his heirs or assigns, should immediately surrender said tract or tracts to the said defendants, excepting and reserving to the said R. L. Dowling, his heirs and assigns, a right of way over said lands so surrendered for teams, carts, laborers and log landings and log roads during the unexpired term of said lease covering such surrendered land or lands; that, under and by virtue of the foregoing provision and agreement contained in said lease, the complainant entered upon all the lands described in complainant's bill, save and except only the lands hereinafter specifically described in paragraph 2 of this decree in the ordinary and usual course of business for the cutting and removal of timber therefrom under said lease and has once cut over each, all and every forty or other larger tract of said land so described in said bill, with the exceptions aforesaid, and has removed therefrom such timber as it desired under the terms of said lease in the ordinary and usual course of its saw mill and logging business,' and further finding the equities to be in favor of defendants and against complainant, except as to that part of the land described in paragraph 2 of the final decree, the finding with respect to such land being for complainant. From this decree complainant appealed.

The record is somewhat voluminous. The amount involved is considerable, but the controversy is in small compass. Counsel for the respective parties concur in the view that one question only is involved, and the several assignments of error are considered together in the briefs. The question necessary to be decided is the intent and meaning of the quoted paragaph of the deed of indenture under which the rights of complainant were acquired. This is a question of law. Incidental to this is the question of fact with respect to whether portions of land had been once cut over and the...