Kinston Manufacturing Co. v. Thomas

Alleit, J. The learned counsel for defendant contend that no interest which a court of equity will protect by injunction vested in the plaintiff to the timber under 10 inches, but which might attain ‘that growth within the time limited for cutting. The question is foreclosed by the decision in Veneer Co. v. Ange, 165 N. C., 54, in which Associate Justice Walker, speaking for the Court, says in reference to deeds like those before us: “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 *112 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, that a tree will within a given period grow 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 grow 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.” Affirmed.