Butler v. McPherson

Smith, J., delivered the opinion of the court. On April 11, 1904, the appellants sold to the appellees theE. Yz of section 34, township 27, range 1 w., in Quitman county; the deed containing a reservation of the timber as follows : “By this deed of conveyance made by us (said Butler and Barrow) to the said McPherson Bros., we expressly reserve and retain the right and title to any and all timber on said land herein conveyed, and which we may remove therefrom at any time not later than the 1st day of October, 1905, and all the timber thereon which is not removed by us by said date is to be638 .and remain the property of the said McPherson Bros., and the deed thereto is to be absolute from that time.” Prior to October 1, 1905, appellants cut and removed from the land much of the timber in logs, but worked a part of it into railroad cross-ties, -which ties had not been removed from the land on October 1, 1905. These ties were afterward taken possession of and .sold by appellees, and this suit was instituted to recover the value thereof. In addition to the plea of general issue, a special plea of res adjudícala was filed by appellees, alleging that all •matters involved herein had been adjudicated by the chancery •court in a proceeding therein between the parties to this cause. After hearing all the evidence the court below instructed the jury to find for the defendants, and verdict was rendered accordingly, from which judgment plaintiffs appeal to this court. We learn from the brief of counsel for appellants that the learned judge below was of the opinion that the plea of res ■adjudícala was not sustained, in which we agree with him, but further held that appellants were not entitled to recover under the rule announced in Clark v. Ingram, 90 Miss. 479, 43 South. 813. This case correctly decided that any timber standing or •cut and lying in its natural state upon the land at the expiration ■of the time fixed by the contract for the removal thereof would belong to the owner of the soil. But does the word “timber,” as used in the contract here under consideration, embrace articles manufactured out of the timber? These ties were manufactured at a cost of fifteen cents each, and the greater part of their value was the result of the skill and labor expended in such manufacture. The word “timber,” used as a generic term, according to Mr. Webster, means “that sort of wood which is proper for huildings, or for tools, utensils, furniture, carriages, fences, ■ships, and the like; usually said of felled trees, but sometimes ■•said of those standing” — and not the articles in their completed •state, for the manufacture of which the timber may be used. See, also, Anderson’s Dictionary of the Law. When the timber was manufactured into railroad cross-ties, [639] its use aud nature changed. “It was no longer timber. Its character as timber ceased when the labor of” those who felled the trees, and cut the trunks thereof into appropriate lengths “ceased and the labor of the manufacturer commenced. When the article is once perfected for immediate use, it is only known by its appropriate name, and is no more timber than bread is flour, or flour wheat, or mutton sheep, or beef oxen.” U. S. v. Schuler, 27 Fed. Cas. 982. As was said by the court in Hubbard v. Burton, 75 Mo. 67: “Suppose, instead of purchasing the timber for the purpose of making railroad ties, the object of the purchaser had been to manufacture barrels, buckets, or shingles, would defendant have been entitled to all such manufactured articles found upon the premises after the expiration of the specified time ?” We think, as did the Missouri court in the case just cited, and the Wisconsin court in Golden v. Glock, 57 Wis. 118, 15 N. W. 12, 46 Am. Rep. 32, the fair and reasonable construction of the contract is that only- the timber standing or lying upon the ground in its natural state at the expiration of the time limit in the contract was forfeited to appellees. The peremptory instruction was therefore improperly given, and the judgment is reversed and cause remanded.