Young v. Cowan

HART, J., (after stating the facts). The chancellor found that Young had actual knowledge at the time he purchased the land from Carroll that the Cowans had already purchased the timber on the land from Carroll. It can not be said that his finding in this respect is not sustained by the evidence. It is true Young testified in positive terms that he had no such knowledge and some other circumstances, not necessary to mention here, corroborated him. On the other hand the Cowans testified in equally positive terms that they told Young that they had purchased the timber on the land in controversy from Carroll before he purchased the land itself. They are corroborated by .two other witnesses. The most serious question in the case is whether or not a reasonable time had elapsed in which to remove the timber. The deed to the timber specified no time for its removal. In such a case this court holds that the purchaser has only a reasonable time to remove the timber and that the lapse of such time forfeits all his claims, thereto. The court further holds that in determining what would be a reasonable time to be allowed for the removal of the timber from the land, all the facts and circumstances of the case and the conditions surrounding the parties at the time of the execution of the contract should be considered. Liston v. Chapman & Dewey Land Co., 77 Ark. 116; Garden City Stave & Heading Co v. Sims, 84 Ark. 603; Fletcher v. Lyon, 93 Ark. 5; Beene v. Green, 127 Ark. 119. In the Garden City Stave & Heading Co. v. Sims, supra, it was said that the purchaser of the timber was entitled to have taken into consideration the slashy character of the land, wet seasons and the difficulty of securing workmen as having prevented a prompt removal of the timber. So it will be seen that what was a reasonable time in the instant case is dependent upon the local conditions and the peculiar circumstances of the case. A period of nine years elapsed before the Cowans commenced to cut and remove the timber from the land. There was no reason shown why the timber could not have been sooner cut and removed. The fact that there was a decline in the timber market or that no saw mill was near to the timber constituted no excuse for a failure to remove the timber within a reasonable time. Newton v. Warren Vehicle Stock Co., 116 Ark. 393, and Polsin v. Beene, 126 Ark. 46. In the last mentioned case it was said that inconvenience, or the cost of compliance with the contract, or other like thing can not excuse a party from the performance of an absolute and unqualified undertaking to do that which is possible and lawful. In the present case there was only the timber from forty acres of land to be cut. The owners of the timber had a saw mill within three miles of it. It is true that they state that the power at their mill was not great enough to cut oak timber; but, as we have just seen, this could not have excused them from a performance of the contract. The facts are undisputed, and it is perfectly apparent that the timber could have been cut and removed in a less time than nine years. Therefore, the court should have held that the timber was not cut and removed within a reasonable time, there being no time limit mentioned in the deed. For the error in not so holding the decree, will be reversed and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.