Hampton Stave Co. v. Elliott

Kirby, J., (after stating the facts). Appellant contends that the clause in its deed to McCartney reserving the oak timber upon the lands conveyed, with the right to remove same, was in effect an exception thereof from the grant entitling it to remove said timber at any time thereafter. There was no time fixed for the removal of the timber nor any testimony showing the intention of the' parties in that regard, except the stave company’s president’s statement of its policy of preserving’ its timber on its own lands as long as possible and supplying it for the operation of its plant only when other timber could not be purchased therefor, and that he declined to fix a limit for its removal in the making of the deed of conveyance upon the suggestion of the grantee that it should be done. The court is of opinion that under said clause of reservation in the deed, the stave bolt company was entitled to no more than a reasonable time for the removal of the standing timber and had no more right to remove same than -would have resulted had it conveyed the lands without such reservation and the grantee conveyed the timber back to it without mention of any time for its removal. In Liston v. Chapman & Dewey Lumber Co., it was held under a deed conveying the merchantable standing timber of a certain description which specified no time for its rémoval, that the right to remove existed only for a reasonable time in the absence of anything in the conveyance or in the proof aliunde showing a contrary intention. Earl v. Harris, 99 Ark. 112; Hall v. Wellman Lumber Co., 78 Ark. 408; Fletcher v. Lyon, 93 Ark. 10; Burbridge v. Ark. Lumber Co., 118 Ark. 94, 178 S. W. 304; Newton v. Warren Vehicle Stock Co., 116 Ark. 393. We see no reason why such a reservation of timber from a 'grant of the land fixing and indicating no time for its removal, should be construed to give the grantor a longer time for the removal thereof, than it would have had had it purchased the standing timber conveyed to it by a deed in which no time was fixed for the removal and hold under the circumstances of this case, that appellant had no more than a reasonable time for the removal of the timber, under the terms of its deed conveying the lands, within the doctrine already announced by former decisions of this court. See also Heflin v. Bingham, 28 Am. Rep. 776; Adkins v. Huff, 58 W. Va. 645; Morris v. Sanders, 43 S. W. 733. The lands were twice cut over by appellant company after their grant to McCartney, the last time before the cutting complained about herein, in the year 1912, when it was thought by those who cut the timber that all was taken that could be profitably used for the purpose for which the timber was required. There was no reason shown why the timber could not have been sooner cut and removed, and unquestionably it could have been during the more than .seven years from the reservation of the title thereto in the deed to McCartney in August, 1907, to the last cutting in September, 1914, the land having been cut over twice during such time as already stated. No error was committed in the chancellor’s holding that appellant’s right to remove the timber had ceased at the time ’of the cutting thereof and that it should respond in damages for its value. We are of the opinion, however, that the chancellor’s finding as to the amount of damages is not .supported by the testimony, being clearly against the preponderance of it and that the judgment should not have been for a greater amount than $3 per cord for the ninety-one cords of .stave bolts taken by appellant company, since it acted under the belief that it had the right to remove the timber ¡by reason of the reservation in its said conveyance of the lands. Bunch v. Pittman, 123 Ark. 127, 184 S. W. (Ark.) 850. The decree is accordingly modified, and as modified • will be affirmed. It is so ordered.