Stewart v. Herring

*725 Anderson, J., delivered the opinion of the court. There were two replevin suits by appellant, Mrs. Harriett Stewart, against appellee, J. J. Herring, begun in the court of a, justice of the peace of Marion county for the recovery of timber cut and removed by appellee from his own land, the title to which timber appellant claims was in her. Both eases reached the circuit court of Marion -county on appeal, and were there consolidated and tried, and, at the conclusion of the evidence, the court directed a verdict for appellee upon which judgment was duly entered. This appeal is prosecuted from that judgment. The appellant, on the 1st of December, 1904, was the owner of eighty-two acres of land in Marion county, on which there was timber merchantable and unmerchantable. On that date she conveyed the eighty-two acres of land to her son, Charles H. Whittom (she having- been formerly Mrs. Whittom). The deed to her son contained this provision as to the timber : “The timber on the above-described land is hereby reserved during Mrs. Harriett Stewart’s lifetime; at her death it is to revert to the said Charles H. Whittom.” • *726 On the 26th day of January, 1922, Charles H. Whittom and wife conveyed the land to DeWitt Herring, and on June 9,1923, DeWitt Herring* and wife conveyed the land to appellee, J. J. Herring. D/uring the period of the ownership of the land by Charles H. Whittom and his vendee, DeWitt Herring, appellant, without let or hindrance from either of them, cut and removed and sold a considerable quantity of timber from the land. After appellee acquired title to the land, he proceeded to cut and” remove the timber involved in this cause, claiming that ho had the title thereto and right so to do. The result was. the two replevin suits by appellant ag*ainst appellee, which were consolidated and tried together in the ericuit court and are here on this appeal. The trial court directed a verdict for appellee on the theoíy, as we understand from the record in the case and the briefs of counsel, that the language in appellant’s deed to her son quoted above, did not constitute an exception in the conveyance by which only a part of the estate in the land was conveyed, but amounted to the creation of another estate, namely, a life estate in the timber in appellant, the grantor, and that under the law the owner of this life estate had no right to remove any timber from the land except (quoting from appellee’s brief’ “for the purpose of paying taxes, and she could have out a part thereof for firewood and for making’ improvements on the place, and she might have felled a part of the timber so as to clear' up the land, if the clearing* had increased the value of the inheritance.” Appellee’s position is that a life estate in standing; timber on land is governed by .substantially the same principles as a life estate in the soil; that a life tenant in the soil has no right to cut and remove the timber thereon except for the purposes of good husbandry; and that the same is true of a life estate in the timber on land. On the other had, appellant contends that the deed in question simply conveyed- the fee in the entire estate with.the exception of a life estate in the grantor in the timber thereon, with the right in the life tenant to cut *727 and remove such timber during the period of the existence of the life estate. Unless the contrary appears it will be presumed that appellant, in the deed to her son, intended to reserve an estate or a right of some value, when she undertook to reserve the timber on the land during her lifetime. Unless the reservation gave her the right to cut and remove the timber for commercial purposes, she got practically nothing by her reservation. In Hand v. FilUngwne, 92. Miss. 185, 45 So. 569, it was held that a deed of conveyance to land whereby the grantor reserved all standing timber thereon of certain dimensions and agreed to remove the same within a designated period, with right of way retained for that purpose, the grantee, on the expiration of such period, became the owner of the timber remaining on the land; that the meaning of the conveyance was that the grantor made an absolute conveyance of his land, subject to his right to remove the timber of certain dimensions therefrom within the period named in the deed, and that what the grantor did remove within that period was his property. It is true the court said in that case that the deed there involved was “an absolute conveyance of all his land, which included the timber on it.” That language would indicate that the title to the timber went with the land. But clearly the court did not intend to convey that idea, because it held plainly that the title to the standing timber on the land during the reservation period, with the right to cut and remove the same, was in the grantor; and the grantee did not get the title to the standing timber until the expiration of the reservation period. That case is not decisive of the question here involved, because the conveyance there under consideration expressly reserved the right in the grantor, during the period named in the deed, to cut and remove the standing timber growing on the land, with right of way over the land for that purpose, while the deed involved in the present case is. silent as to any right in the grantor to cut and remove the timber during her life *728 tenancy, with right of way over the land for that purpose. But we hold that the deed could not have reasonably meant anything else. Without that construction, the reservation would be of practically no value to the grantor. Furthermore, the evidence in the case tends to show that that was the construction put upon the deed for the entire period the land was owned by the appellant’s son and his vendee. \ The estate consisted of the land and the growing- timber thereon. Appellant conveyed to her son the land in fee excepting a life estate in the timber standing thereon, with the right to cut and remove such timber during the period of her lifetime, and the necessary right of way over the land for that purpose. During that period the title to the timber was in her. Without any provision in .the deed to that effect, the title to the timber on her death would revert to the owner of the land. That provision in the deed was mere surplusage. It was only a recital of what would have taken place under the law. We do not think the authorities, relied on by appellee, are in point on the facts of this case. They deal with life estates in the soil. The soil lasts for all time. The timber goes and comes. As to whether the timber cut and removed by appellee was a part of the timber constituting the life estate of appellant excepted from her deed was not fully developed, as we understand the record in the case. We think, therefore, that, instead of a judgment being entered here for appellant, the cause should go back for trial governed by the principles declared in this, opinion. Reversed aoid remanded.