Slush v. Foxworth

Cook, J., delivered the opinion of the court. The appellee, E. "W. Foxworth, filed a bill in the chancery court of Marion county against Matthew Slush and others, alleging that the defendants wrongfully cut and removed from the lands of the appellee certain hardwood timber; and he also filed a bill against Matthew Slush and other and different codefendants, alleging that they wrongfully cut and removed from the same lands certain pine timber belonging to the appellee. These suits were consolidated and tried as one. The bills of complaint alleged that the appellee acquired title to the land in question by inheritance from the estate of his father, J. M. Foxworth, deceased, and by deeds from the otlier heirs at law of the said J. M. Foxworth, deceased, and showed that the defendants cut the timber under a claim of right evidenced by a certain timber deed executed by J. M. Foxworth and Sam Foxworth, on the 2d day of May, 1913, in which the words descriptive of the timber conveyed were as follows: “All the timber and wood of any and all kinds standing’, lying, and being upon the following described lands, *365 situate and being in Marion county, state of Mississippi, to-wit: [Describing lands], including all sunken saw logs in the water on said lands, excepting, however, the fruit trees on said lands.” The-bills of complaint alleged that this deed conveyed and intended to convey only the trées on said land at the date of said deed which were then in that locality customarily used and considered suitable for manufacture and sale; that the word “timber,” as used in the said deed, meant only those trees on said land at the date of said deed which were then in that locality customarily used and considered suitable for manufacture and sale; that the said term “wood,” as used in said deed, did not convey or intend to convey any trees or portions of trees on said lands, other than those dead portions of fallen trees thereon which were then and there customarily used and considered suitable for making fuel; that no pine trees of the variety known as ‘ ‘ old field pines,” regardless of size, were covered by the word “timber,” or were intended to be conveyed; and that the word “timber,” as understood and used in the locality of said lands at the date of said deed, and as used therein, and as fixed by common understanding and custom of the community at the date of said deed, meant and was understood to mean, and embraced and was understood to embrace, only those trees on said land of the varieties and sizes following: Hardwood trees fourteen inches or more in diameter at the small end of a log twelve feet or more in length; dogwood and per-simon trees large enough to make bolts, clear of knots, three feet long, four inches in' diameter, for manufacture into shuttle blocks; and pine trees, other than ‘‘ old field pine,” which measured twelve inches or more in diameter at the small end of a saw log sixteen feet or more in length; and that no other trees were embraced or intended to be embraced within the description of the deed. At the trial, over the objections of appellants, oral testimony was admitted to show that the words “tim- *366 her” and “wood,” as used-in the deed, each had a restricted meaning; that the word “timber” was intended to and did convey only trees which were, at the date of the deed and in the locality, customarily used and considered suitable for manufacture and sale, and that only trees of the varieties and sizes above stated were so used and considered suitable for such purposes; and also that the word “wood” was intended to and did convey only those dead portions of fallen trees which were then customarily used for and considered suitable for fuel. At the conclusion of' the trial the chancellor entered a decree adjudging' that the above-mentioned deed conveyed only those pine trees on the land therein described which, at the date of the deed, measured eight inches or more in diameter, eighteen inches above the ground, and also that it conveyed only those trees of the varieties other than pine which measured in diameter at the date of said deed as follows, to-wit: “All ash ten inches in diameter and over at a point eighteen inches above the ground; all persimmon eleven inches in diameter and over at a point eighteen inches above the ground; all hickory twelve inches as in diameter and over at a point eighteen inches above the ground; all oak twelve inches in diameter and over at a point eighteen inches above the ground; all cypress twelve inches in diameter and over at a point above the swell of the butt; all gum fourteen inches in diameter and over at a point above the swell of the butt; all other-varieties of hardwood twelve inches in diameter and over at a point eighteen inches above the ground.” The decree further adjudged that the complainant was the owner of all the trees on the land which, at the date of the deed, measured less than the amounts so found and fixed by decree, and awarded as against the several defendants a recovery for the value of the trees cut and removed by them which were of the size and variety so found to belong to the complainant. Under the view we have reached as to the proper construction of *367 the deed, the other provisions of the decree are not here material. We think the chancellor erred in holding that the description of the property conveyed in this deed is ambiguous, and that the word “timber” therein should be limited to trees of certain varieties and sizes, or such as were merchantable at the date of the deed, and that the word “wood” therein should be limited to such portions of fallen trees as were customarily used for fuel in the community where the land was located. It is difficult to conceive of language more comprehensive or more inclusive than the description of the property as contained in this deed. It embraces all timber and all wood without any limitation, except the fruit trees on the land, and this description of “all timber” and “all wood” is enlarged by the words ‘ ‘ of any and all kinds standing, lying, and being upon” the lands. In the case of Great Southern Lumber Co. v. Newsom Bros., 129 Miss. 158, 9 So. 864, this court approved Webster’s definition of timber as being “that sort of wood which is proper for buildings or for tools, utensils, furniture, carriages, fences, ships, and the like,” and also cited with approval the case of U. S. v. Soto, 7 Ariz. 230, 64 P. 419, in which timber is defined to be “ all kinds of wood used either for building purposes or in the manufacture or construction of useful articles.” In our opinion, the description, “all the timber and wood of any and all kinds standing, lying, and being” upon the lands, conveyed all the trees thereon which would make timber within these definitions, and that this description cannot be limited by oral testimony to such trees as were customarily used and considered suitable for manufacture and sale in the particular -locality. Neither can the descriptive terms, “all wood of any and all kinds standing, lying and being on the land,” be so limited to such wood as was customarily used for fuel in that community. Our conclusion in this regard is strengthened by the fact that the broad description of *368 the property contains a specific exception of the frnit trees on the land, thus indicating that the grantor considered and fixed the only exception necessary and desired. To support the decree of the chancellor the appellee relies on the cases of Kerl v. Smith, 96 Miss. 827, 51 So. 3, and Vinegar Bend Lumber Co. v. Churchwell, 123 Miss. 807, 86 So. 299 ; but in neither of these cases was the description of the property conveyed so inclusive as the terms of the description here involved. In the Kerl case, the word “timber,” used alone and unexplained in a contract, was held to be “not so accurate a designation of what was sold as to preclude investigation as to what was meant by it in this ambiguous contract; ’ ’ while in the Churchwell case it was held that, in a deed conveying “all of the pine timber” situated on described land, the meaning of the term “timber” is indefinite, and parol evidence is admissible to show what the term means, but neither of these cases is controlling in the construction of the terms of the description here under consideration, We conclude, therefore, that oral testimony was inadmissible to limit or vary the terms of the description as written in the deed, and that all recovery against any of the defendants for cutting and removing timber should have been denied. The deed from J. M. F'oxworth to Matthew Slush conveyed to the grantee, his successors or assigns, rights of way for wagon roads, tram roads, and log railroads, for the purpose of cutting and removing the timber, and obligated them to pay to the grantor, or his successors or assigns, any and all damages done to the cultivated fields and crops, and the chancellor found upon the proof that the defendant Quaker Oats Company wrongfully made roads through the cultivated fields of the appellee, and thereby damaged him in the sum of one hundred dollars, and allowed a recovery of this sum, with interest for two and one-half years at six per cent., aggregating one hundred fifteen dollars. We are unable to say that this finding of fact *369 is manifestly wrong. Consequently, the decree of the court below will he reversed, and a decree entered here dismissing’ the bill as to all the defendants, except the Quaker Oats Company, and a decree entered here against that company for the item of one hundred fifteen dollars, damage to the cultivated fields of the appellee, with one-fifth of the costs of this appeal to be taxed against it, and the remaining four-fifths against the appellee. Reversed, and decree here.