Burbridge v. Arkansas Lumber Co.

Kirby, J., (after stating the facts). Appellants insist that they are entitled to have the deeds to appellees cancelled as a cloud upon their title and recover the timber conveyed therein, within the authority of Earl v. Harris, 99 Ark. 112; Yelvington v. Short, 111 Ark. 253, and Newton v. Warren Vehicle Stock Co., 116 Ark. 393, 173 S. W. 819. The deeds conveying the timber to appellees all contain clauses requiring 'the removal thereof ££as expeditiously and possible,” identical with those construed in the above causes, except ¡as to the time mentioned, which was twenty, twenty-one, thirty - and thirty-five years herein, and the additional Clause, “It is further agreed that whenever said timber shall have been removed, the party of the first part shall enter full possession of -said land at once, whether the time for such removal -be expired or not. ’ ’ In the first ¡of those.,oases the time mentioned had expired, likewise in -the second, while in the third it was not more than one-half expired, but in each of them -there was a cessation of work ¡after the timber was commenced to be -cut -and removed, and the excuse was the low price of the manufactured product caused by a financial panic and the inability of the company to continue operations. The failure in another instance to procure labor ¡at all times when the weather conditions were favorable to the cutting and removal of the timber, and the removal o-f the mill, which was expected to be used in the manufacture of the timber, -from its location near the timber in the Harris case. There has been no- ¡cessation of activity upon the part of any of appellees, from the time they began the purchase ¡of -timber in Bradley County in the cutting, removal and manufacture of same. Each of said companies owns large tracts of timber and timbered -lands from 75,000 to 80,000 acres, -situate in different parts of the county, and ¡all involved in this -controversy, as the undisputed testimony ¡shows, ¡situated great ¡distances from the mills where it was expected to be manufactured into lumber, as ail the parties to the ¡transaction knew, when the timber was -sold, and the conveyances made. They also knew that the timber was to be transported or carried to the mills over log railroads -and trams ¡to be constructed by the different lumber companies, each deed granting -a right-of-way for -such railroads and trams over the land on which the timber was conveyed for its removal -and -the -transportation of either timber owned or •after acquired by the grantee. There was only one log road about three 'miles long in the county when most of the timber conveyances were made to appellees, and the Southern Lumber Company and the Arkansas, extended it westward, cutting their timber as they went, in the north end of the county, until they reached Banks, sixteen miles distant, a station on the Rock Island Railroad, which was constructed in 1907. These two companies then made arrangements with the Rock Island Railroad Company for trackage rights and hauled some timber from further down in the county, over its line and their own road, the Warren & Ouachita Valley Railroad. This was their only timber that could be reached during the time it was cut since it was necessary for them to construct a log road twelve miles through territory in which they had no timber in order to reach their other timber and this road was constructed during the two years the timber'was hauled over the Rock Island line, shortly after which period their contract with the Rock Island was cancelled by the ruling of the Interstate Commerce Commission. One of these mills had in the meantime increased its sawing or cutting capacity from 45,000 feet daily to 150,-000. Immediately upon the completion of the twelve miles of road jointly by the Arkansas and Southern Companies, each began building from its terminus independent log railroads 'and spur tracks and cutting and removing its timber within reasonable hauling 'distance thereof. Neither of these companies had any right to, nor agreement for, the use of any of the facilities of the other company for the transportation of timber to its mills, except the joint .arrangement of the Southern and Arkansas Companies over the Warren & Ouachita Valley Railroad and the Arkansas:Southern, jointly constructed by them. All are rival concerns in their operations in the purchase of timber and manufacture of lumber in Bradley County and each was reaching its own timber with all dispatch consistent with the continuous operation ef its mill plant at full capacity and the difficulties to be overcome in the building of log railroads and cutting and removing the timber. The proof on the part of appellants shows that the timber upon these lands had been conveyed by deed to appellees more than ten years before the suits were brought, that none of it had been cut or removed from any of the tracts of land within that time and that each of said lumber companies had sufficient means .and facilities at hand to have built roads and reached and removed the timber from these lands before the bringing of these suits, if they had constructed their railroads directly to this timber in ithe beginning, instead of as they were constructed to other lands, for the removal of timber therefrom .and without regard to the practical operation of their plants and the extraordinary expense of doing so. All the parties to the timber deeds knew the location of the mills, how the timber was to be carried to the mills for manufacture, and knew the facilities and lack of facilities for transporting it at the time of making the conveyances, and these facts were recognized when the conveyances were made.as appears in the clause thereof, providing for the removal .of the timber, each of which recites that unless it shall have been removed within a period of twelve, twenty, thirty or thirty-five years, as the case may be, that the lumber company shall pay the taxes on the land after the expiration of that period until such time as the timber is removed. A like clause in the deed was construed in .all three of the aforesaid cases, the court holding that the parties intended that the grantee should cut and remove the timber from the land as expeditiously as possible and that it was within their contemplation at the time of the execution of the deed, that it might take the grantees longer than the number of years recited therein from the date of the execution of the deed in which to cut and remove the timber, although he proceeded with the expedition required, that he was required to begin to cut and remove the timber promptly after the contract was made and should continue to do so as expeditiously las possible, until it was 'all cut and removed. It was said in the Harris case: “While this was 'considered essential, yet it was thought by the parties that, under the conditions and circumstances then ¡surrounding the land 'and the removal of the timber therefrom, it might take the defendant longer than five years in which to cut and rembve the same, though he proceeded with proper dispatch, and in that event it was agreed that he should have longer than five years in which to cut 'and remove the same; and, the length of time which he .should have after the five years not being .specified, defendant had a reasonable time after the five years in which to remove the timber if he proceeded during all such time as expeditiously as possible. The specification of five years was made, we think, only for the purpose of fixing the amount which the defendant should pay .for the timber. * * In any event, he 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. ’ ’ In Newton v. Warren Vehicle Stock Co., supra, it is said: “Upon the authority of those two cases we must hold that 'the contract in .suit did not give absolutely and in all events ¡any definite time for the removal ¡of this timber. The purpose of this contract was to require the timber to be removed expeditiously, and sufficient time for that purpose was given. This might exceed ten years, or it might not require that length of time; but the right to cut and remove the timber expired when a reasonable time had been given for its expeditious removal. ’ ’ ' The intention of the parties must be gathered from ■the written instrument executed, and it can not be done without all the words and provisions thereof are considered, as said in Earl v. Harris, 99 Ark. 112. “In order to arrive at the intention of the parties as to the time in which the timber under this contract should have been cut and removed, all .parts of the above provision must be taken into consideration. No word should be treated as surplusage and disregarded, if any meaning which is reasonable and consistent with the other parts thereof can be .given to it. This provision of the contract or timber deed should be construed, therefore, so that each part should take effect. ’ ’ (Citing cases.) (1-2) The timber deeds, if their terms .are not am-, big'uous, shouid.be construed without the aid of testimony aliunde, and if the intention of the parties can not be ascertained from the written instruments, the other evidence is admissible in case of ambiguity then to show what the meaning of the contract was. There was no attempt made in this case to alter, vary or amend the terms of the written contracts by parol evidence, although the testimony introduced .conduces to show that the parties to the deeds at the time they were executed knew the conditions surrounding the transaction and the conditions that must be met by the lumber companies in the removal of the timber and also its distance from the place of manufacture 'and the means and appliances that must be constructed to cut and remove it to the place of manufacture, and they under these circumstances wrote into each deed the term of years in which the timber was permitted to stand upon the land by the grantor without the payment of any tax by the .grantee and all understanding as the court held in those three cases that the timber must be removed as expeditiously as possible, under the circumstances. In determining the question of a reasonable time, it was proper to take into consideration the location of the land, its accessibility, the character and quantity of the timber thereon, the seasonableness of the weather and the facilities obtainable for cutting and re- , moving’ the timber, “and all other conditions and circumstances which might affect the cutting and removal thereof.” Earl v. Harris, supra; Liston v. Chapman & Dewey Land Co., 77 Ark. 116. Certainly the clause in .these deeds, not found in the deeds .construed in the other cases, providing that “the grantor, whenever the timber from the lands shall have been removed, should enter into full possession of the land at once, whether the time for such removal be expired or not,” means something and indicates that it was contemplated that the timber might be removed before the period mentioned expired. The recital of such definite period of time .after the expiration of which the grantee was required to pay the taxes on the land if the timber 'had not sooner been removed, supports the court’s announced views that the grantee was required to remove the 'timber, as expeditiously as possible, without regard to the time designated and that the parties contemplated that the timber might sooner be removed but that the whole time mentioned might be required for the purpose and a longer time even, notwithstanding the grantee was proceeding continuously 'and with all possible dispatch. (3) The impossible is not required by law, nor expected to be performed. Men .are reasonable creatures, and are not presumed to act otherwise in the business affairs of life. These appellees could not cut the timber upon these lands distant from their mills and remove it immediately after the deeds conveying it were made. It was impossible to do it under the conditions existing, so great was the distance intervening. They could not be expected to extend their railroads and use all ¡their facilities to reach these lands as soon as they might possibly have been reached after the conveyance of the timber to them, without regard to the expense incident to doing so, and the consideration of the removal of their other timber nearer to the mills .and more accessible, and the 'best method and the most practical, of reaching with proper dispatch and expeditiously cutting and removing it all. It is true no timber had been or could be removed from these lands, which were inaccessible under the oircurm stances, within ten years of the date of the execution of the conveyances. But it is also true that each appellee had been all the while, from the time of their execution, increasing and extending its facilities for transportation of the timber, that each mill of each .appellee had been running full time and cutting timber to the limit of its capacity, from the time of its construction and the capacity of one mill had been doubled .and another trebled. The court is of opinion that said appellees under the circumstances shown to exist, were proceeding with proper dispatch to remove the timber from these lands as expeditiously as possible within the meaning of the deeds of conveyance thereof, and that the reasonable time given for its removal (by .said conveyances had not expired and the trial court did not err in its decree, which is affirmed.