Person v. Elmblad

Burns, J. Plaintiffs appeal from an order dismissing their complaint in which they sought a permanent injunction against defendants from cutting timber on plaintiffs’ property and for damages for timber cut by defendants in 1959. The plaintiffs further appeal from an order denying motion for new trial. In 1909, Mr. and Mrs. Olof Olson, holders of title in fee to the land in question, gave an instrument titled, “Bill of Sale of Timber” to “Iver Oscar V. Zellen, Jr. and John Oscar Zellen.” The von Zellens first exercised their rights under this agreement in 1942, and cut approximately $3,000 worth of timber. Mrs. Olson commenced suit and it appears the court enjoined the cutting of timber and it ceased with no further litigation. In 1959, the von Zellens by quitclaim deeds conveyed their interest in the timber on this land to Oscar Elmblad, one of the defendants. When defendants entered the land in 1959 and cut trees said to be valued at $642.90, plaintiffs brought this suit. Prior to the cutting of said trees, plaintiff Person advised defendants not to cut timber on the land. Appellants claim that the Olsons did not intend to transfer an interest in realty by their “Bill of Sale of Timber” in 1909, rather that by this instrument the Olsons gave a bill of sale for personalty with a li *405 cense to enter upon the realty to remove same within a reasonable time, and that 50 years was an unreasonable time for such license to continue. Appellants further claim that they are entitled to treble damages under CL 1948, § 692.451 (Stat Ann § 27.2161). * Appellees claim that from an examination of the instrument, which embodies a habendum clause, a warrant and defend clause, and a conveyance to the executors, administrators, and assignors of the grantees, it is clear that an interest in realty was conveyed, coupled with an irrevocable license to cut timber. Intervenors filed a brief, claiming that since there was no time limit mentioned in the bill of sale, the timber belonged to the von Zellens in fee simple by virtue of the warranty deed from the Olsons, and this interest the von Zellens conveyed to appellees. The significant parts of the instrument in question read as follows: “Bill op Sale op Timber Olof Olson & Mary Olson to Iver Oscar Y. Zellen, Jr. Know all men by these presents, That we Olof Olson and Mary Olson * * * for and in consideration of the sum of one dollar and other valuable considerations * * * have bargained and sold, and by these presents do grant and convey, unto the said parties of the second part their executors, administrators or assigns, all the timber now standing, lying and being upon the north west quarter of the north west quarter of section thirty-three, township fifty-two north of range thirty west. All maple trees *406 under 9 inches are to he left on said land. This includes the right to enter upon said iand & to cut and remove said timber, belonging to us and now in our possession at Arvon township. “To have and to hold the same unto the said parties of the second part their executors, administrators and assigns, forever. And the said parties of the first part, for their heirs, executors and administrators, do covenant and agree to and with the said parties of the second part their executors, administrators and assigns, to warrant and defend the sale of said property, goods and chattels hereby made, unto the said parties of the second part their executors, administrators and assigns, against all and every person or persons whatsoever.” The instrument was signed, witnessed, acknowledged, and notarized. The question before this Court is whether the aforesaid instrument constituted a sale of timber coupled with a license to enter and remove it and for what period of time, or if the instrument constituted a grant of an interest in realty. In Wade v. Day (1925), 232 Mich 458, 463, the Supreme Court of this State recognized the difficulty of interpreting timber sales contracts when it stated: “We have examined the decisions relative to timber sales, and find no case for the conveyance just like this one, have discovered the futility of trying to fit one timber sale decision to another set of facts, and find we can do no more than apply general and well-established principles of law to the case at bar.” A general rule in eases involving an agreement for the sale of timber by which this Court is guided has been stated in Sorenson v. Jacobson (1951), 125 Mont 148, 152 (232 P2d 332): “By the weight of authority such a parol or simple contract for the sale of growing timber, to be cut and *407 removed from the land by tbe purchaser, is not to be construed as intended by tbe parties to convey any interest in land, but as an executory contract for tbe sale of tbe timber after it shall have been severed from tbe soil.” To determine the nature of the instrument before us, we must look to the instrument to find the intent of the parties and in so doing the Court must construe the language of the parties in the light of its usual significance. McCastle v. Scalon (1953), 337 Mich 122, 128. Looking to the instrument in the case at bar, we find such words as “all the timber now standing,” and “all maple trees under 9 inches are to be left on said land,” and “this includes the right to enter upon said land and to cut and remove said timber belonging to us and now in our possession at Arvon township,” and “warrant and defend the sale of said property, goods and chattels.” (Emphasis added.) Although the instrument is replete with legalistic jargon, the clear and unambiguous intent of the parties nonetheless comes through when they speak, among other things, of standing timber and exclude certain maples. A very significant indication of the intent of the parties is found in the last sentence of the first paragraph of the instrument when they say, “to cut and remove said timber belonging to us and now in our possession at Arvon township.” We conclude from a reading of this instrument that it constituted a bill of sale of timber and not a grant of an interest in realty. As the license to cut and remove timber does not specify a termination date, to determine what is a reasonable period, we must again apply the general rule as enunciated in 34 Am Jur, Logs and Timber § 45, p 522: *408 “As in tlie case of grants or contracts of sale specifying no time for removal, it lias been held that a license to enter upon the land to cnt and remove timber must be acted upon within a reasonable time.” See, also, Wilson Cypress Co. v. Stevens (1932), 106 Fla 717 (143 So 661). Other jurisdictions in determining what was a reasonable time to cut and remove timber where no time was specified held in Nelson v. McKinny (1931), 163 Wash 529 (1 P2d 876), that 22 years was not a reasonable time; in Kalinoski v. Carlisle Lumber Co. (1943), 17 Wash 2d 662 (137 P2d 109), that 18 years was not a reasonable time; and in Probst v. Young (1933), 187 Ark 233 (59 SW2d 17), that 20 years was not a reasonable time. In the case before us, 50 years would be an unreasonable length of time in which to remove standing timber in possession of the grantor at the time of the sale on a plot the size involved herein. The only remaining issue to consider in this case is the question of plaintiffs’ request for treble damages. CL 1948, § 692.451 (Stat Ann §27.2161), provides: “Any person who shall cut down or carry off, any wood, underwood, trees or timber, * * * on the land of any other person, * * * without the leave of the owner thereof, * * * shall be liable to the owner of such land * * * in 3 times the amount of damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in the cases provided by law.” The facts as presented in the record on appeal do not entitle the plaintiffs to treble damages under the statute. Judgment in favor of defendants is reversed, setting- aside an order dismissing plaintiffs’ bill of com *409 plaint and the cause remanded for entry of a judgment in favor of plaintiffs not inconsistent with this opinion. Costs to appellants. Lesinski, C. J., and Holbrook, J., concurred. Footnotes [*] See, currently, CLS 1961, § 600.2919 (Stat Ann 1962 Kev § 27A.2919).