Kaul v. Weed

Opinion by Mr. Justice Bbown, The question raised on this appeal, as stated by the appellants, is, what passed to them under the grant of “ all and all manner of timber down and standing save and except hemlock timber? It is not needful that we trace from the Countess of Cumberland’s case (1609), Moore, K. B. 812, down through the succeeding English cases to our own time the well defined meaning of the generic term timber, as trees, felled or standing, to [592] be used for building; and review the similar definition given it in the dictionaries and by the courts of different states in this country, as well as by the supreme court of the United States, in United States v. Schuler, 6 McLean, 28; nor need we consider the cases called to our attention in which a broader meaning seems to have been given the word, for, under the findings of the learned court below, fully justified by the evidence, the appellants seemed to have clearly understood the term at the time of the grants to them to be what the appellees contend it is — trees suitable for lumber purposes. The learned judge to whom the case was referred found that, at the dates of the deeds to the appellants, the minimum sizes for timber upon the lands were as follows : for cherry, ash and oak, eight inches in diameter at the top end of the butt log; for poplar, pine and basswood, birch and cucumber, ten inches in diameter at the top end of the butt log, and for maple, twelve inches in diameter at the top end of the butt log; and there was a finding that the appellants, by their instructions to their jobbers, and in their operations in cutting and removing the timber, recognized that only trees of the sizes named and over were suitable for timber and lumber purposes, and that the trees under the minimum sizes named were not suitable for such purposes. There was a further finding that the timber was cut according to these sizes by the appellants’ jobber, Joseph Haney, in obedience to instructions which they gave him. At the time of the grants to the appellants, there were no. chemical factories in the county, and none were erected until 1894. Prior to that year no chemical wood had been sold or marketed from these lands, and no chemical or pulp wood was cut upon them at any time by the appellants until they had been cut over for timber purposes and the logs removed. In October, 1893, and annually thereafter, after the timber suitable for lumber had been cut and taken from the lands by the appellants for lumber purposes, they, by their jobbers, again went over the lands, cut the remaining trees and wood that were not suitable for lumber into pulp wood and chemical wood, and removed and sold the same. The grantees, having unmistakably indicated by their conduct in exercising their rights under the grants to them what they understood as having passed to them under “ all and all manner of timber,” cannot now be heard in [593] support of their contention that another interpretation should be placed upon these words. “ When we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it: ” People’s Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22; and the intention of the parties at the time a contract is entered into should govern its enforcement: Erwin’s Appeal, 20 W. N. C. 278. The conclusion cannot be avoided that the appellants would not be insisting that trees, which they manifestly did not regard as timber at the time of their purchase, should now be regarded as spch, if in the meantime the wood had not acquired value for purposes for which timber, either in the legal or common acceptation of the term, has never been used. The proper interpretation having been given by the court below to the word “ timber,” as used in the deeds to the appellants, the assignments are all overruled, and the judgment against the defendants below, for damages for cutting and removing trees which they had not purchased, is affirmed.