Dexter v. Lathrop

Opinion, Me. Justice Williams: This case depends on the construction of the contract of March 1, 1850, between Silas Billings, of the one part, and Andrus and Langdon of the other part. It is what is known — 579 — as a timber contract, was made forty years ago when the facilities for transportation were less, and the cost much more, than now, and it should be read in the light which the business to which it relates, with the incidents and usages of that business as then conducted, may throw upon it. The cost of transporting logs to a mill, and the sawed lumber from the mill to some line of transportation, ordinarily a canal or a navigable stream, was so great as to make it important to remove all the timber that was worth removing by the same job or operation. The owner of wild lands, when about to sell his standing timber for removal, would therefore fix a price intended to cover the average value of the trees on the stump. In this way, the good qualities were made to sell the-poor, the large trunks to sell the small ones, and those easy of access to carry with them those more difficult to reach. To protect his uncut timber from the forest fires that follow the woodsman, it was important for him to require the purchaser to cut clean, taking all the timber of the kind sold as he advanced over the tract. In this way he would keep the standing timber unbroken before him, as he moved along, and leave nothing behind to be destroyed by fire. In order that he might receive pay for all that was worth paying for, he would insert in his contract a stipulation requiring the buyer to remove and pay for all merchantable logs suitable for sawing ; and, to reduce as much as possible the room for controversy, it was usual to provide that, as to size, logs should be deemed suitable down-to twelve or ten inches in diameter at the small end of the log. After the contract was made, the buyer would consider the topographical situation of the tract, and push his roads, slides, or logways into the timber along some hollow or hillside, in in such way as to enable him most conveniently to reach it. So much of the surface as could be reached from one road or system of roads was then cleared of its timber trees, and when this was accomplished another hollow or the opposite hillside was entered and cleared of its trees, in the same manner, until all the timber was removed. If a tree was left standing or a log unremoved when operations ceased on any part of the tract, it was in danger of destruction by fire; but, if spared by the fire, the cost of its subsequent removal by itself was so much greater than if it had been taken with the timber about it as to — 580 — render it valueless to the owner of the land. Stipulations upon all these subjects were usual, because they were necessary for the protection of the seller and to prevent controversy between the parties about their respective rights. With this glance at the business to which it relates, let us now look at the provisions of this instrument. They provide for the sale by Billings to Andrus and Langdon of “ all the pine, norway, and oak timber, suitable for sawing and down to twelve inches in diameter at the smallest end of the log, on his tract of timber land.” The purchasers may pay for the timber by the thousand feet or by the acre, at their election, “ but in either case they are to take the timber clean as they go, including all fit for sawing and down to twelve inches in diameter at the smallest end of the log.” The reason given for requiring the timber to be cut clean is that, “ when they commence cutting on any one hundred acres, they will take the timber off that part.” If the purchasers elect to pay for the timber by the thousand feet, it is provided that it shall be measured on the bank before its removal, and that the timber shall be cut clean. This phrase is explained thus: “ That is, all good merchantable timber down to twelve inches at the smallest end of the log.” It is stated that operations may be conducted simultaneously on different parts of the tract, but at each place they must be conducted in the same manner, for, as the contract again explains, “ it is intended to prevent them from running over the whole tract, and cutting out the best timber, or the best groves of timber, and leave the balance scattered over the tract.” We have now brought together all the provisions of the contract that described the character of the timber sold, or the manner in which it is to be cut and removed. Though evidently not the work of a lawyer, it was drawn by one who had a thorough, practical knowledge of the lumber business, and the ability to express his ideas with clearness and precision. The purpose to protect the seller, and to compel the buyer to remove all the timber suitable for sawing in the manner best calculated to preserve that left standing from fire, runs through every part of it; but there are no words of exception or resex-vation to be found, and ixone from which the existence of a purpose to reserve any part of the timber can be inferred, un — 581 — less the phrase “down to twelve inches in diameter at the smallest end of the log ” be held to justify such an inference. These are the words on which the appellant relies. They occur three times in the contract, and each time they are used as part of the description of the timber which the buyer is to take and pay for. They are first used to describe the timber sold, thus: “ All the pine, norway, and oak timber suitable for sawing and down to twelve inches in diameter at the smallest end of the log.” In both the other places where they are found, they are used in stating the duty of the buyers, as in this sentence: “ They are to take said timber clean as they go, including all fit for sawing and down to twelve inches in diameter at the smallest end of the log.” Taken in the connection in which we find them, what do these words mean ? We must remember that the purpose of the seller was to turn his standing timber into money, and that of the buyers was to saw it into marketable lumber for sale. It was the interest of the seller to require that all merchantable timber on his land should be removed and paid for. But what is a merchantable log ? That depends on its size and quality, and the interest of the buyer is to handle such as will yield the largest margin over the cost of manufacture. His profits come largely from the better qualities and larger sizes. Whether a log is of a merchantable quality can only be determined on examination, but what shall be deemed a merchantable size may be settled in advance by the terms of the contract. This contract requires the buyers to remove and pay for all the pine, norway, and oak timber suitable for sawing, and it in effect declares that a log twelve inches in diameter at the smallest end shall be deemed suitable as to size. This is not a reservation of timber to be left standing on the tract, or an exception of certain sizes out of the general grant of all the timber, but it is a parenthetic and explanatory sentence defining the duty of the buyers towards the seller. The first paragraph in which it occurs should be read thus: “ Said. Billings sells all the pine, norway, and oak timber suitable for sawing (and, as to size, logs down to twelve inches in diameter at the smallest end shall be deemed suitable) on his timber tract,” etc. These words should be read in the same manner wherever they occur, and understood as the declaration or agreement of — 582 — the parties that a log twelve inches in diameter was, as to size, suitable for sawing, and to be paid for by the buyers as such. So much of the ground for controversy opened by the phrase “'suitable for sawing,” was closed by the agreement of the parties in advance. The effect of the contract, when read in the manner we have suggested, is to sell to Andrus and Langdon “ all the pine, norway, and oak timber ” on the land that was suitable for sawing. In the language of the contract, the timber was “ to be cut clean ” from the tract, so that no merchantable logs, or logs fit for sawing, should be left behind when the cutting was completed. Below twelve inches in diameter the buyers might determine suitability as to size as well as suitability as to quality, but at twelve inches and upwards it was settled by the contract, and they were bound to take and pay for them if their suitability depended on size only. Such being the meaning of the contract, we are to inquire when the question of suitability for sawing was to be determined ? The contract fixed three millions of feet as the minimum amount to be removed annually. Assuming that it was removed at this rate, in the absence of any complaint on that subject, it required seventeen years to remove it all, as the evidence shows us. The buyers were to move carefully over the tract, cutting clean as they went, and leaving the uncut trees in a body before them. The question of the suitability of a tree for sawing must therefore be settled when the tree was reached in the process of cutting the timber. If suitable then, it must be taken and paid for. If unsuitable, it had no value to seller or buyers, and was left behind as worthless when the woodsmen moved forward. The learned judge of the court below was right, therefore, in excluding the evidence offered to show the growth of the trees between the date of the contract and the time of actual cutting on the land of the plaintiff. It was wholty immaterial what that growth might have been, for, under the terms of the contract, suitability for sawing was to be determined when the trees were reached in the process of removing the timber, and not before. But the learned judge stopped short of the logical result of his own construction of the contract, when he instructed the jury, in substance, that the words “ down to twelve inches in diameter at the smallest end of the log ” were to be understood as limit — 583 — ing the meaning of the words “ all the pine, norway, and oak timber suitable for sawing,” and equivalent to a reservation by the seller to himself of all timber less than twelve inches in diameter. In this he was wrong. The words are not a reservation in form or in legal effect. They were not intended nor do they operate as a limitation upon the right of the purchasers to take all the timber suitable for sawing on the land; but they were intended, and their legal effect is, to compel them to take, as of suitable size, all logs down to the limit named. Below that size the right and the duty to take depend on suitability for sawing, to be determined not by the contract, but by the usages of the trade, the character and location of the timber, the length of haul to reach the stream or the mill, and the character of the surface over which it is to be taken to reach the roads and logways. If the haul is short and the grade easy, a small log may be hauled with profit, which, at a greater distance or over difficult roads, could not be made to pay the cost of getting it to the mill. Let us suppose that the purchasers, in the course of their work, come to a tree having sufficient size near the ground to justify the expectation that it would furnish a log twelve inches or more in diameter at the small end. They cut it and find' on actual measurement that the taper of the tree exceeds their estimate, and the log actually measures at the small end but eleven and one half inches. It is straight, free from knots and shakes, and of good quality. What must be done with this log? If the learned judge was right in his construction of the words we have been considering, the purchasers would have no right to remove it, and would be liable in trepass for twice its value for cutting it. If this was really so, the position of the purchasers would be one of some hardship. They cannot measure, nor can they estimate with absolute exactness the diameter of a tree at sixteen or thirty-two feet from the ground. If they underestimate it and leave the tree uncut, they are liable to pay for it on their contract. If they over-estimate it, they must leave it behind, and paj^ twice its value for having blundered in cutting it. Under our view of this contract, the purchasers would have the right to take the log notwithstanding its scant diameter, if satisfied to do so, and manufacture it, paying for it in the same way that they pay for the rest of the timber. They cannot be — 584 — compelled to take smaller logs than the contract describes, but they may take them, under the terms of this contract, if they are in other respects suitable for sawing, and pay for them at the same rate and in the same manner that they pay for the rest of their timber. This construction makes it possible for the purchasers to do as they undertook to do, and clean the tract'of “all pine, norway, and oak .timber suitable for sawing,” cutting it clean as they go, taking all the good, merchantable timber “ fit for sawing,” (and down to twelve inches in diameter at the smallest end of the log shall be deemed fit as to size,) and leaving suitability for sawing, in smaller logs, to be settled by circumstances, when they are reached. Any other construction would fail to reach the intent of the parties, and lead to endless confusion. Perhaps it would be well to leave this case without further consideration of the assignments of error, as it must necessarily rest upon the construction which we have put upon the contract. There is one other subject, however, to which we think it our duty to advert in order to correct a misapprehension. In answer to the defendant’s second point, the learned judge told the» jury that, under the provisions of their •'contract, Andrus and Lang'don became tenants in common with Billings in the land covered by it. He said, “ and as these parties were and are tenants in common in the land, they were and are also tenants in common in the timber described as sold in the contract.” We cannot agree to this definition of the relation these parties occupied towards each other. Tenants in common have distinct titles to separate parts of an undivided whqle, but- no one of them has an exclusive right in any part of the whole. ■The land being held in common, each tenant has a right to possession, which is incident to his title and extends over every part of the land so long as the tenancy in common continues, but partition may be compelled at any time, and, when made, the title and the right of possession in each becomes several and attaches to the purpart assigned him, so that each owns a distinct-messuage by a distinct and several title. Until partition is made, account render or a bill in equity will lie, if one tenant takes the share of the rents and profits belonging to another. It seems to us very clear that this was not the relation existing between Billings and Andrus and Langdon. He sold them — 585 — no part of his land as such, but the standing timber, growing on the land. Their right to what they bought was a separate, absolute, undivided one, and was exclusive of their vendor. Billings’s title to his land remained after the contract, as it was before, a separate, absolute and undivided one. He had sold, and the purchasers had acquired, as incidental to the purchase of the standing timber, the right to have their trees stand on and receive sustenance from the soil until they could be cut and removed; and the right to enter the lands, and do thereon all things needful in order to cut and remove the timber in the manner and at the rate provided for in the contract. For all purposes not inconsistent with the rights of his vendees of the timber, Billings was in possession of his entire tract as owner, and his right to the possession was (subject temporarily to the rights of the timber owners) a separate and an exclusive one. He retained no interest in, or fractional part of the title to the standing timber. Andrus and Langdon acquired no title to the land. ’ Each owned his own estate by a title that was several and exclusive. They might be in possession of different parts of the tract, or of the same part for different purposes. Their possession might be contemporaneous and concurrent, but the right of possession of each would rest on, and its extent would be determined by his estate, one being sole owner of the land, the other being sole owner of the trees. The situation is substantially that which is created when the owner of land sells the stratum of coal which underlies it to a mining company. The owner of the coal has an exclusive right to the possession of his own estate. The owner of the surface has a like exclusive right to its possession, subject to the right of entry incidental to the grant of the coal, which resides in his grantee. They are not tenants in common of the coal or of the surface, but each is a sole tenant of his own estate. The case of Wheeler v. Carpenter, 107 Pa. 271, is relied on by the appellee, and seems to have been relied on by the learned judge as authority for the doctrine of the charge. The facts of that case were that the owner of land having pine trees standing upon it, sold the land, reserving the trees, and incorporated into his deed a reservation to himself of the “pine timber suitable for sawing,” without fixing any limit of time for its removal. It might be practicable to distinguish that — 586 — case from this upon its facts, but it is not necessary to attempt it. It was an action of trespass in which the jury found that the defendant cut trees not included in the reservation, and returned a verdict for single damages, which the court trebled. The question in this court was over the liability of the defendant to treble damages under the act of 1824, and the action of the Common Pleas was reversed, and judgment entered on the verdict for single damages. The plaintiff in error was represented by the Hon. Geo. A. Jenks, and the Hon. W. L. Corbit, both good land lawyers, and their position was that their client had an interest in the land by virtue of the reservation in his deed, which continued until his timber was removed, and gave him a right of entry to select, cut, and remove it. Having this interest in the land, they argued that he, like a tenant in common, was not within the letter or the purpose of the penal provisions of the act of 1824. This was the point ruled. The plaintiff below argued that this objection was removed by the act of 1869, which expressly provides that one tenant in common shall have every remedy in law and equity against his co-tenant who cuts timber belonging to them, without his consent, that he has against a stranger to the title. But this court decided that a remedy and a penalty were to be distinguished, and that giving the former did not, ex vi termini, carry the right to proceed for the latter. Whatever may have been said in elaborating them, the points adjudged were only those we have now stated. Boults v. Mitchell, 15 Pa. 371, is in harmony with the doctrine of Wheeler v. Carpenter, although the point ruled is not the same. That was an action against the owner of the timber brought by a subsequent purchaser of the land. The defendant justified under the right of entry incidental to his ownership of the timber. The plaintiff alleged that the reservation of the timber was not good against him, and claimed title to it by virtue of his purchase of the land. The jury found against the plaintiff on the facts, and it was held that, having the title to the standing timber, the defendant had the right to enter and remove it. The Six Carpenters’ Case, 8 Hep. 146 (a), 1 Sm. L. C. *216, really throws no light on our question. That was an action of trespass brought by a tavern-keeper to recover for wine and bread consumed by the six car — 587 — penters, for which they failed to pay. On demurrer, it was held that the action would not lie, and that the remedy of the tavern-keeper was in debt. Having entered the tavern lawfully for the purpose of procuring refreshment, the carpenters were not turned into trespassers by the omission to pay for what was furnished them. They had a right of entry. They entered for a lawful purpose. After entry, they committed no act of violence, and they were liable to pay for their entertainment as for any other debt contracted by them. The statement in the first of the reporter’s head-notes, in the case of Wheeler v. Carpenter, must be read in the light of the single question on which the case hung, viz., had the defendant such an interest in the land, by virtue of his reservation of the pine trees, as gave him a right of entry and took him out of the operation of the act of 1824? We held that he had an interest in the land which gave him a right of entry to select, cut, and remove his timber, and that, as a tenant in common would be protected by his right of entry, so the defendant was protected. But it is thought that the recent case of Shiffer v. Broadhead, 126 Pa. 260, is in conflict with Wheeler v. Carpenter and Boults v. Mitchell, and a glance at that case is therefore necessary. It was tried before a referee to whom the questions of fact and law were submitted. He found, as a fact, that the defendant did cut three hundred and fourteen trees that belonged to the plaintiff, rvithout the consent of the owner. This finding, whether it should have been made on the evidence or not, was like a verdict, conclusive of the fact. The question of law before us was whether, upon this finding, the defendant was liable under the act of 1824. Our Brother Stekjrett, who delivered the opinion of the court, very carefully put the findings of the referee in the foreground, and said, in effect, that the defendant was brought by them within the provisions of the act of 1824. In our case there is no verdict against the defendant, but the existence of his right of entry and the nature and extent of his interest in the standing timber and the land upon which it was growing, come directly to us for determination upon the construction of the contract under which he justifies. The view we have taken of that subject renders an examination of the several assignments of error unnecessary. This judgment must be affirmed, not — 588 — upon the rulings of the learned judge before whom it was tried, but because the proper construction of the contract of 1850 requires it. On looking over the testimony, we cannot escape the conviction that the several parties interested have heretofore understood the contract as we have construed it. Silas Billings left as the plaintiff tells us, six children besides herself to survive him. Her share of this large body of land was, as settled by the proceedings in partition, less than seven hundred acres. Seventeen years were occupied in removing the timber. After this was accomplished, sixteen years more passed, during which the heirs at law of Billings had the exclusive possession of their respective purparts of the land. Thirty-six years after the contract was written, this action was brought. A region comparatively inaccessible in 1850 had been in the meantime penetrated by railroads, and brought into nearness to markets. The value of land and of standing timber had increased to five or six or more times its value in 1850. After this extraordinary lapse of time, and the changes that have been wrought by it, we have, set up 'for the first time, the position that the contract should be construed as a reservation of all pine, norway, and oak logs, less then twelve inches in diameter at the smallest end, no matter how fit they may be for sawing, nor how merchantable according to the usages of the trade. As we are satisfied that the judgment is right, we ought not to reverse it because the reasons given by the learned judge are wrong. The judgment is affirmed.