Clark v. Ingram-Day Lumber Co.

Mayes, J., delivered the opinion of the court. On the 21st day of July, 1903, D. H. & L. J. Cowart executed the following contract to the Gulf Coast Lumber Company, viz.: “In consideration of $350 cash to me in hand, I hereby sell and warrant to the Gulf Coast Lumber Company all saw log timber on the following land, to-wit: North half of northeast quarter (N. % of N. E. %) section one (1), township seven (7), range twelve; south % of section thirty-six, township six, range twelve west. It is further agreed to give the above Gulf Coast Lumber Company three years to remove the saw logs from the above-described land from this date. Witness our signature this the 21st day of July, A. D. 1903.” After the execution of the above contract the Gulf Coast Lumber Company conveyed all of its' rights under same to the In [486] gram-Day Lumber Company. At the expiration of the time limited by the contract, the Ingram-Day Lumber Company had not removed all the timber from the premises as required by the contract; but prior to the expiration of the three years, and,while their contract was in full force, they had cut down a lot of the timber, and this timber so cut down remained upon the land after the ,21st day of July, 1906, and the date at which this contract expired. After the expiration of the contract, the Cowarts sold the timber then lying upon the premises described in the conveyance, and which had been cut by the Ingram-Day Lumber Company, to Clark, the appellant. It is agreed in the record that the value of these logs sold to Clark by the Cowarts was $250, and that, if Clark is liable at all, he is liable for this sum. It would be difficult for a contract to be drawn more clearly evidencing the intention that the rights of the grantee should cease at the expiration of the time limited in the contract than this one 'does. There are a great many decisions upon this subject, and the courts are in conflict as to whether or not timber shall be considered to be “removed” within the meaning of the contract of this sort, when it shall have been severed from the soil and left upon the land. We prefer to align ourselves with those authorities which maintain the integrity of the contract and enforce it according to its clear intent and meaning, when interpreted according to the general acception of the words used, rather than to enter into any refined distinction as to what constitutes a “removal,” and thereby bring into the contract interminable confusion. By the plain terms of this .contract the timber is sold to the grantee on condition that it be removed from the premises within three years from the date of the instrument, and, the three years having expired without its having done so, it has no further right on the premises or to the timber, either standing or which it has cut down and left lying upon the land after the expiration of the time fixed by the contract for removal. 'By the terms of the contract it [487] is given “three years to remove the saw logs from the above-described land,” and a plain interpretation of this language means that it shall not only cut down, but that it shall take from the lands, the timber so granted, else its rights are terminated by the contract itself. The only- safe way to construe this contract is to construe it according to the general understanding of the meaning of the words that have been used, and which show that it was intended to limit the rights granted by this contract to a period of three years, and no longer. Timber cannot be said to be “removed from the premises” unless it is carried off; This contract says that the logs shall be removed from the above-described premises in three yea-rs, and timber cannot be said'to be “removed” from the premises when it is merely cut down and left lying on the lands. If the parties had intended that the grantee under this contract should have any rights additional to those which are granted in the contract- — that is to say, if it was intended that they should have three years within which to cut the timber, and an additional time in which to remove it from the premises ■ — nothing would have been easier than for the parties to have put this in the contract; and, since they have not done so, we cannot say that the parties intended that the grantee should be limited to three years only as to the time in which he shall cut down the timber, and shall have an additional time in which to remove timber cut from the premises. To do this would be to make a new contract, and to disregard the agreement which the parties have actually made. In the case of Boisaubin v. Seed, 2 Keyes, 323, where the party had'bought timber on certain land, with the right to enter for the purpose of cutting and carrying away the timber for and during the term of ten years, the court held that the party claiming under the contract could not enter upon the land after the expiration of the term limited in the contract, for the purpose of removing timber cut prior to the expiration of the term, and on page [488] 324 says: “The parties fixed the time within which the vendee or his representatives might enter the land and carry away timber. After the expiration of the term every entry upon the land for the purpose of taking timber away was without license of the deed. To hold to the continuation of the right to remove timber from the land, after the right for so doing which has been agreed on by the parties has expired, is to disregard their agreement or make a new one for them. It was the intention of the parties to the original agreement to limit the right to take and carry away timber, and the term within which the vendee or his representatives might lawfully enter upon the land; and the vendee has no title to the timber by cutting logs and leaving them upon the land, and to complete his title he must also remove the logs within the term.” And again, on page 326, the opinion says:. “The defendant cut down more timber than he could remove within his term. He knew that his right to enter and carry away expired at a particular date. He attempted to overreach the letter to his covenant, and must be allowed to bear his loss without remedy.” This case has'been adopted and approved in many cases. All the cases which hold to the view that, notwithstanding there is a time within which timber sold must be cut and removed, yet the grantee in such an instrument, by severing the trees from the soil, has removed them within the meaning of the terms of such contracts, and that his rights are not. lost by a failure to actually take the timber from the land within the period limited, cite back to the case of Hoit v. Stratton Mills, 54 N. H., 109, 20 Am. Rep., 119. We prefer the line of authority which adopts the case of Boisaubin v. Reed as containing, the best decisions upon this subject. Strong v. Eddy, 40 Vt., 547; Kellman v. McKinstry et al., 69 N. Y., 264; Chestnut v. Green, 86 S. W., 1122, 27 Ky. Law Rep., 838; Saltonstall v. Little, 90 Pa., 422, 35 Am. Rep., 683; Jackson et al. v. Hardin, 87 S. W., 1119, 27 Ky. Law Rep., 1110. In the case of Adkins v. Huff, 58 W. Va., 645, 52 S. E., 773, [489] 3 L. R. A. (N. S.), 649, in the notes will be found many authorities on this subject; and in this case it is stated, in the opinion cf the court, to be found on page 652 of 3 L. R. A. (N. S.), page 774 of 52 S. E.: “By the great weight of authority it is determined that no right or title exists in the grantee after the expiration of the time specified in the deed or contract.” It is further said on the same page: “No distinction seems to be made in this respect between the rights conferred by deed and those conferred by contracts which have not the forms nor all the requisites of a deed.” We are of the opinion that this case should he, and it is, reversed and remanded.