Yelvington v. Short

Wood, J., (after stating the facts). We are of the opinion that under the undisputed evidence, the court did not err in directing a verdict in appellee’s favor. The deed under which appellant asserts his rights contained a provision similar to the deed construed by this court in Earl v. Harris, 99 Ark. 112, the only difference being that in that case the time was five years, whereas in the present case the time is fixed at two years in which the grantee should begin to pay the taxes on the land in the event all the timber was not removed at the expiration of such period. In that case we held that the clause under consideration contemplated that the vendee should have the full period mentioned in the deed as the time when the grantee should begin the payment of taxes for cutting and removing the timber, but that under this provision the vendee should remove the timber as expeditiously as possible; that this clause determined the time in which the timber should be removed, which meant a reasonable time, the grantee proceeding as. expeditiously as possible ; that under such provision the grantee should begin cutting and removing the timber as expeditiously as possible after the deed was executed, and that he should continue in the same manner until it was cut and removed. In that case we said: “The grantee was required to cut and remove the timber as expeditiously as possible, and he did not therefore have either five years or any other definite time in which to cut and remove the timber if he did not proceed continuously with all possible expedition from the date of the deed. ’ ’ Applying the principles of that case to the evidence in this record, we are of the opinion that the court did not err in holding that, under the undisputed evidence, the appellant did not proceed “as expeditiously as possible” to cut and remove the timber. The appellant, after beginning to cut the timber, and after continuing for a few weeks, desisted, and did not commence again until about sixteen months had elapsed. The testimony in our opinion, is not sufficient to show any reasonable excuse or explanation for this delay. The attempted explanation as to the scarcity of hands, wet weather, etc., is not sufficient. Considering the amount of timber that appellant bought, and which he had the right to remove, and the circumstances as developed by the undisputed evidence surrounding the appellant, he did not proceed as expeditiously to cut and remove the timber as the contract under which he claimed contemplated. The judgment of the circuit court is therefore correct and it is affirmed.