Bardon v. O'Brien

The following opinion was filed April 20, 1909: KbewiN, J. The vital question in this case is whether, under the clause in the deed reserving the pine and cedar timber, the grantor was bound to remove it within a reasonable time. There is considerable conflict of authority on the question, many cases holding that such a clause amounts to a reservation and not an exception, and that the timber reserved is only such as shall be removed within a reasonable time, while others hold that such a clause amounts to an exception of the timber from the grant. The phrase “excepting and reserving” is commonly used in deeds, and is sometimes held to amount to an exception of part of the property which is the subject of conveyance, and sometimes to a reservation out of the estate conveyed, depending largely [195] upon tbe intention of tbe parties, tbe subject matter of tbe .grant, whether tbe thing excepted or reserved is a thing newly created out of tbe lands and tenements granted, or part of tbe property in existence and excepted therefrom. Prichard v. Lewis, 125 Wis. 604, 104 N. W. 989. Many cases are cited by respondent from other states bolding that, under reservations similar to tbe one here, tbe timber was not excepted, but only tbe right to enter and cut it, and that when no time limit is specified for tbe entry and cutting tbe law implies that a reasonable time was intended. But tbe doctrine of this court in Rich v. Zeilsdorff, 22 Wis. 544, is not without support in other jurisdictions. Knotts v. Hydride, 12 Rich. Law, 314; Sears v. Ackerman, 138 Cal. 583, 72 Pac. 171; Whitaker v. Brown, 46 Pa. St. 197; Winthrop v. Fairbanks, 41 Me. 307; Clap v. Draper, 4 Mass. 266; North Ga. Co. v. Bebee, 128 Ga. 563, 57 S. E. 873; Starr v. Child, 5 Denio, 599; State v. Wilson, 42 Me. 9; Craig v. Wells, 11 N. Y. 315. At an early day this court, in Rich v. Zeilsdorff, supra, held that a clause in a deed reserving to the grantor tbe timber with tbe right to enter and cut it is an exception of tbe timber with sufficient interest in the soil to sustain it. In that case tbe reservation was, “reserving tbe right to cut and-remove all tbe pine timber or trees upon said premises and half of all cedar trees upon said premises, and tbe right is hereby reserved by the party of tbe first part to enter upon said lands at any time within two years next succeeding tbe date of this instrument for tbe purpose of cutting and removing tbe trees or timber so reserved.” Tbe opinion is rested upon the fact that tbe right to cut and remove only is reserved and not tbe timber. Tbe distinction between an exception and a reservation is discussed, and tbe court said: “A reservation is always of something taken back out of that which is clearly granted, while an exception is some part of tbe estate not granted at all.” [196] And it is held that where the timber is reserved it is an exception, since the timber is part of the realty and would have passed to the grantee but for the exception, and that the property in the timber continues in the grantor, with the right in so much of the soil as is necessary to sustain it. In the Rich Case this court draws the distinction between a case where the timber is reserved and the right to cut and remove it, and holds that where the timber is reserved the reservation is an exception, since the thing reserved is a part of the realty. This doctrine was again stated and approved in Williams v. Jones, 131 Wis. 361, 111 N. W. 505, which case was approved in the late case of Western L. & C. Co. v. Copher River L. Co. 138 Wis. 404, 120 N. W. 277. It seems clear, therefore, that a reservation of timber in a deed similar to the one before us, under the decisions of this court, amounts to an exception of the timber from the grant. Many of the authorities cited by counsel for respondent support his contention, namely, that reservations similar to the one in the instant case have been held to reserve only such timber as should be cut within a reasonable time. But we think this court is committed to the doctrine that such a reservation of timber amounts to an exception from the grant of the timber thus reserved, and that the rule should not now be departed from. We must therefore hold that the pine and cedar timber was excepted from the grant and- remained the property of the plaintiff, and therefore he was entitled to judgment. By the Court. — The judgment of the court below is reversed, and the cause remanded with instructions to render judgment for the plaintiff for $375 and costs. Donan, SibbecKbe, and TimliN, JJ., dissent. A motion for a rehearing was denied October 5, 1909.