Richmond Land Co. v. Watson

BROADDUS, P. J. The plaintiff sues to recover the value of certain timber which it is alleged defendant cut and removed from plaintiff’s land. The defendant Watson, who was the owner of the land from which the timber was taken on the 23d day of August, 1905, sold and conveyed it to J. Wood Davis. The defendant , inserted the following reservation in his deed: “Reserving all white and post oak timber suitable for railroad crossties, to be cut and removed within six months from date.” Davis sold and conveyed on September 5, 1905, all of said land to plaintiff. On the 24th of February', 1906, and thereafter, defendant cut and removed the ties in controversy. It appeared that the timber was cut and made into ties prior to the expiration of the six months. But those in controversy were hauled from [556] the premises sometime in April. At the close of the case on the testimony the court directed the jury to find for defendant. The reservation in the deed is clear and unambiguous; by which defendant retained title of all white and post oak timber suitable to make ties to be cut and removed within six months from the date of the deed. Prior to the expiration of the six months the timber reserved was cut and made into ties. They were then no longer real estate but personal property for the removal of which an action of trespass would not lie. [Insurance Co. v. Mangold, 94 Mo. App. 125; Keeton v. Audsley, 19 Mo. 362; Erskine v. Savage, 51 Atl. (Maine) 242.] If one sells land reserving timber thereon the removal must be Asdthin a reasonable time but failure to remove does not defeat the reservation. [Huron Land Co. v. Davison, 90 N. W. (Mich,) 1034.] The plaintiff contends that the reservation clause should be construed with reference to the right of the defendant to remove the ties as interpreted by the parties themselves. Such is the rule in doubtful cases but the meaning is not doubtful here and we do not think we are justified under the evidence to presume just what interpretation the parties have put upon it. The action of the court is affirmed. All concur.