Young v. Camp Mfg. Co

• Citation: 110 Va. 678,66 S.E. 843
• Parties: YOUNG et al. v. CAMP MFG. CO. WRIGHT et al. v. SAME.
• Decision Date: 03 November 1910
• Court: Supreme Court of Virginia

110 Va. 678

66 S.E. 843

YOUNG et al.

v.CAMP MFG. CO.

WRIGHT et al.

v.SAME.

Supreme Court of Appeals of Virginia.

Jan.13, 1910.

1. Deeds (§ 90^*)—Construction.

The court in construing a deed must consider all its provisions.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 236; Dec. Dig. § 90.*]

2. Logs and Logging (§ 3*)—Sale of Standing Timber—Deeds—Construction.

A deed to standing timber, with the right to erect buildings and use and operate railroads on the land, and with the right, for a fixed period, to cut and remove the timber, and with the further right, on the grantee failing to remove the same within the fixed period, to such additional time as he may desire, on paying interest on the price annually, does not convey an absolute and unconditional title to the timber, but only conveys title to such as may be cut and removed within the fixed period, and such reasonable extensions thereafter as the grantee is entitled to, or as may be agreed on between the parties, and does not give the grantee a right to cut and remove the timber for an indefinite period.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]

3. Logs and Logging (8 3*)—Sale op Standing Timber—Deeds—Construction.

Unless a deed clearly manifests an intention of the grantor to convey to the grantee a perpetual right to enter on the land and cut trees, the grantee of standing timber is allowed only a reasonable time to remove the timber, where the conveyance contains no provision as to the time of exercising the right of removal.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 9, 11; Dec. Dig. § 3.*]

4. Logs and Logging (§ 3*)—Sale of Standing Timber—Deeds—Construction.

The court, in determining what is a reasonable time in which a purchaser of standing timber must cut and remove the same, pursuant to the conveyance, which gives him a specified time to do so, and an additional time, if necessary, must consider the circumstances and conditions affecting the parties, and the rights of the grantor are not to be measured by the convenience or inconvenience, the ability or inability, of the purchaser, caused by the magnitude and extent of his business, and its numerous other contracts, to which the grantor is a stranger.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 9, 12; Dec. Dig. § 3.*]

Appeal from Circuit Court, Brunswick County.

Consolidated suits by the Camp Manufacturing Company against V. A. Young and others and against one Wright and others. From a decree for complainant, defendants appeal. Reversed in part.

Braxton, Williams & Eggleston and R. T. Thorp, for appellants.

J. C. Parker, E. R. Turnbull, Jr., E. P. Buford, R. B. Davis, and Hill Carter, for appellee.

KEITH, P. These two cases were heard together, and the decision of them depends upon the construction of language in deeds common to them both, and in all material respects identical in terms.

The Camp Manufacturing Company, a corporation under the laws of Virginia, filed its bill, in which it shows that Young and others, by their joint deed, in consideration of the sum of $250, which was paid, conveyed to it all the pine timber 12 inches in diameter across the stump at the time of cutting, on a tract of land in the county of Brunswick; that by said conveyance complainant was granted the right, for a period of 5 years from the 24th day of January, 1895, the date of said deed, in which to cut and remove the said timber, and the further right that, if it should fail to remove the said timber within 5 years, it should have such further time in which to remove it as it might desire; provided, however, that it pay interest to the grantors or their assigns, at the rate of 6 per cent, per annum on the purchase price named in the deed, which was $250, from the expiration of the said 5 years until the timber was removed. The bill further shows that the Camp Manufacturing Company, at the end of the first period of 5 years, to wit, on the 24th day of January, 1900, finding that it would need further time in which to cut and remove the timber, and to exercise the rights and privileges granted in the deed, paid to the grantors the sum of $15, beingthe interest on the purchase money for one year, in settlement of the amount due the grantors for the continuation of the privileges granted in said deed from the 24th day of January, 1900, to the 24th day of January, 1901, and subsequently thereto each year has tendered to the grantors a like sum of $15 per year, which sums have been accepted by the grantors for a period of 4 years, down to the 24th of January, 1904, but that they have declined to accept said payment covering any period since the 24th of January, 1904, though the complainant has regularly each year tendered to the grantors the amount due them under the terms of the deed. The complainant alleges that it is now the owner of the timber, rights, and privileges which were conveyed by Young and others to it, and that neither it nor its assigns had done anything to forfeit its rights to the said timber, rights, and privileges; that its title to the same is complete; and that it has done all and everything that was necessary, or provided in the said deed, for the preservation of its title to the said timber.

The bill then goes on to recite that certain persons are cutting the timber which had been conveyed to it; that the men thus engaged were in the employment of one J. E. Mays, who claims the timber by virtue of a deed from its grantors, Young and others, and in reply to the remonstrance of complainant it was informed that they proposed to continue cutting and removing the timber; that the cutting and removing of the timber is an irreparable injury to the complainant, for reasons stated at large in the bill; that the remedy at law would not only involve a multiplicity of suits and great delay, but would be unavailing because those committing the trespass are insolvent, and an injunction, therefore, is asked for to prevent the cutting of the timber upon the tract of land described, and that an account be taken of the timber already cut and removed from the land in violation of the rights of complainant.

The defendants answered this bill, denying all its material averments; and, proof being taken, the court was of opinion, as appears from the fourth paragraph of its decree, that the deed from Young and others to the Camp Manufacturing Company passed to and vested in the Camp Manufacturing Company "the present absolute title to all the pine timber that was on the tract of land described therein, at the date of said deed, which was then 12 inches in diameter or larger, or which would grow to said size within the time limited by this decree for removing the same, which title is defeasible as to such of said timber as shall not be removed from the said land within the time prescribed by the terms of said deed as construed by the fifth paragraph of this decree, and as to such of said timber as does not grow to the size of 12 inches in diameter across the tree stump, and larger, at the time said trees are reached in the process of cutting."

And in the fifth paragraph it is held that: "The title to said timber has never reverted to the grantors, and that the Camp Manufacturing Company is now entitled to a reasonable time within which to cut and remove the same from said land, which reasonable time the court, upon the evidence in this cause, adjudges to be 10 years from this date, provided the Camp Manufacturing Company shall pay to the grantors interest on the purchase money for each year that the Camp Manufacturing Company allows said timber to remain on said land, after the expiration of the first period of years granted in said deed."

To that decree an appeal was allowed.

The first proposition contended for by appellants is that: "Whenever, in an instrument conveying standing timber, there is a clause, either prescribing or granting a certain time in which the vendee should or might cut or remove timber, the grantee has no title whatever to any timber not cut or removed at the expiration of said period."

In support of this proposition the case of Adkins v. Huff, from the Supreme Court of West Virginia, is cited. 58 W. Va. 645, 52 S. E. 773, 3 L. R. A. (N. S.) 649. In that case the court says: "The authorities are practically uniform in holding that an instrument granting standing timber, and containing a clause requiring or permitting it to be removed within a specified time from the date of the grant, gives no absolute and unconditional title to the property. Some courts hold the right of the grantee to be a license, others a lease, and others a defeasible title to the timber. By the great weight of authority it is determined that no right or title exists in the grantee after the expiration of the time specified in the deed or contract."

In Clark v. Guest, 54 Ohio St. 298, 43 N. E. 862, the court said that in the case of sale of standing timber, or of an exception of the timber on a conveyance of the land, the timber must be cut and removed within the time limited in the written instrument, and all that is not so cut and removed adheres in the land, freed from the sale or exception, as the legal effect of such contract of sale or exception of timber is a right to only so much timber as shall be cut and taken off within the limited time.

In McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, reported and annotated in 55 L. R. A. at page 513, an instrument in the form of a deed, purported to convey to the grantees at a specified price per acre "all the pine timber suitable for sawmill purposes, " on described lots of land. It acknowledged receipt of a specified sum, and recited that the grantor agreed "that the amounts left unpaid this day shall be paid as follows: When each lot is entered to cut said timber, the balance due on each lot is $100, whichwill be due as above stated." Tbe instrument also purported to convey to the...