Wiltz Veneer Co. v. Ange

Walker, J,, after stating the ease: We do not see why the judgment of the court below was not correct. The contract of the parties, as it appears in the deeds, is not very clearly expressed, but sufficiently so to make its construction a question for the court. The defendants conveyed to the plaintiff, not only the trees which, at the date of the deeds, had reached a certain diametric size, but also those which could, at any time during the fixed period, grow to that size. Discarding irrelevant words, the language is, “all that growth which is now (of the prescribed diameter) or which, at any time within the period of ten years from this date, may. reach the size of 12 inches on the stump or upwards, when cut, the cutting to be 18 inches above the ground.” They not merely conveyed trees found to be of a certain size at the 'time of cutting them, but presently passed all that would attain to that size during the time allowed for cutting and removing the same. It was said by Justice Avery, for the Court, in Warren v. Short, 119 N. C., 39, that “a deed might be so drawn as to pass all trees that would attain to the size mentioned within a reasonable time fixed by the deed,” and these deeds were presumably framed in accordance with that suggestion. It may not be necessary to decide, for the purpose of this appeal and at this time, whether the estate in those trees which would, in the course of natural growth, reach the required diameter, vested _absolutely at the date of the deeds, as much so as it did in those which were then of that dimension, it being susceptible of proof that trees of a certain age now will be' of the required size before the expiration of the period allowed for cutting and removing the timber; for if the plaintiff has merely a contingent right or interest-in the trees, which, by the natural growth of the trees, will ripen into- a vested one, we should still protect it by restraining any act of defendant committed or threatened in derogation of that right or interest. But this is not even a contingent right, as we gather from the findings. It can be determined with reasonable certainty, as we have said, *58 that a tree will, within a given period, g-row to a certain size, measured diametrically, and therefore it cannot well be doubted that the parties intended, at the date of the deeds, that plaintiff should have a present estate, not only in the trees which were then 12 inches in diameter, but in those which should thereafter g-row to that size within the stated period. The estate vested in both kinds of trees at the date of the deed, but the enjoyment of it, as to the latter class, or the right to cut the trees of that class, was postponed until they had attained to the regular size. Otherwise, the vendor could destroy the subject of the grant to the vendee. What the parties meant, if we state it more exactly, was that the vendee should acquire by the deeds a present interest in the trees which, in the unimpeded course of nature, would grow to' the dimension of 12 inches in diameter within the fixed time, and not in those only which the vendor may not have cut down before that stage of their maturity was reached. Where a deed conveys trees of a certain diameter, nothing else being said, it passes only those coming within the description at the date of the deed. Whitted v. Smith, 47 N. C., 36; Warren v. Short, supra; Hardison v. Lumber Co., 136 N. C., 173; Whitfield v. Lumber Co., 152 N. C., 212; Kelly v. Lumber Co., 157 N. C., 175. When it conveys trees of a certain diameter when cut, it means those which are actually of that diameter when reached in the process of cutting. Lumber Co. v. Corey, 140 N. C., 462. But these deeds mean more than that, and embrace trees which are, at the time of the deed, capable of increasing in size to the stipulated diameter, if left to grow according to the law of nature. How could the vendee know whether there would be any trees to cut, other than those of 10 inches in diameter then standing on the land, if the vendor is permitted to destroy all the trees on the land other than those just mentioned ? The stipulation as to future growth of the trees was a1 substantial part of the contract, and the consideration paid for the trees and the privilege of cutting and removing them may have been measurably based upon it; but if the defendant's contention be the- true one, the benefit from the contract to the vendee *59 would be largely illusory — a figurative but veritable jack iu tke box. It is easy to say that tlie vendor reserved wbat be did not grant; but bere there is a clearly implied stipulation that be will do nothing to make bis grant ineffective, nor will be set up something for the money be received and then knock it down at bis will and pleasure. Such a construction, it seems to us, woidd be unreasonable and lead to great injustice. It would be inequitable to permit him to thus destroy the substance and effect of bis covenant. In Kelly v. Lumber Co., supra, the Chief Justice intimates that, if words of prospective meaning, as to growth of trees, are used in the contract, the deed is not confined, in its operation, to trees of the required size at the time of the deed, but will include those which can reach that size in their natural development during the contract period of cutting. There may be expressions in one or two cases which are apparently in conflict with these views, but the inconsistency is more apparent than real. The language in the deeds in those cases was different, and it was not contemplated by the parties that the vendee should have a present' interest in the undeveloped trees, with merely the right to cut'postponed, as is the case here. In some deeds the expression “when cut” is uised with, the purpose of fixing the time when the measurement is to be made and of forbidding a cutting before that time, although the tree mil reach the requisite size during the period allowed for cutting, and, further, for the purpose of providing that, if the tree is not cut during the period, although it may come to the propef size, it will not pass to the vendee," but revert to the vendor. These decisions and their reasoning are, of course, not applicable here." The case of Robinson v. Gee; 26 N. C., 186, can be distinguished from this one. It was an action of trespass quare clau-sum, and not a bill for an injunction to prevent an illegal and inequitable act, which is threatened, in violation of plaintiff’s rights. Besides, the period fixed for the cutting, was unlimited, and there are, perhaps, other differences, growing out of dissimilarity in the language of the deeds in the two cases; but if it is not in entire harmony, with this opinion, we would not be *60 disposed to follow it, so far as it may essentially differ, therefrom, as we are convinced that tbe true rule of construction bas been applied to tbe deeds in this case, and tbat we have reached a just and equitable conclusion, when we hold that there was no error in continuing the injunction as to the timber, both pine and hardwood, nor as to the undergrowth, to the final hearing. It is so perfectly clear as to require np argument to show that the continuance of the injunction, as to the undergrowth, was entirely proper. We may add that the auxiliary verb “may” .implies ability or possibility, and "Webster says is now oftener expressed by the verb “can,” and as thus used it means potentiality, and, in these deeds, the possibility of the trees growing to a size which will measure 12 inches in diameter. The two verbs “may” and “can” we 'know are often used indifferently in common parlance to express the same idea, and we are satisfied the parties intended, when they referred to- trees that may grow to such a size, that all trees which had the natural capacity, so to speak, of reaching that state of maturity during the contract period, should presently pass to the vendees. It was competent to hear evidence of experts as to the probable increase in the diameter of trees within a given time, according to the law of nature. Whitfield v. Lumber Co., supra; Kelly v. Lumber Co., 157 N. C., 175. No error.