Burton v. Steverson

Oct 20, 1921
7 Div. 183.
Reporters:
, ,
Before:
McClellan
McCLELLAN, J.

[1] The appellee filed this bill against appellant, the court below overruling defendant’s demurrer to the amended bill and parts thereof. The appeal followed that action. The amended bill was the result of a substitution, for the original bill, filed September 9, 1920, its subsequent amendment eliminating paragraphs 4 and 5 of the substituted original bill. Another feature of the amended bill was eliminated by this fact, thus stated in the court’s opinion:

“Complainant does not insist upon a refor“mation of the contract, and therefore it will not be further considered.”

Referring this affirmation to the occasion of the hearing on demurrer to the amended bill, the practical effect was to render wholly unimportant any design to secure relief through reformation of the contract, reproduced, so far as presently material, in the statement of the case; and hence the appellant (defendant) has nothing of which to complain in that particular.

The theory and design of the amended bill, filed by the lessor against a sublessee, is to have ‍​‌‌​​‌‌‌​​​​​‌‌‌‌​​‌​​‌‌​‌​‌‌‌​​​​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​‌‌​​​​‌‌‌‌​‌‌‌​​​‌‌‌‌​​​‌​​​​​​‌​​‌‍the contract construed with respect to the time in which it permitted the extraction of turpentine and to prevent waste of the standing pine timber, so let for turpentine purposes and product, from which the substance should be extracted; the original parties, as well as the sublessee, beixxg all aloxxg aware, it is averred, that the owner,’ the complainant, was a manufacturer of timber into lumber from pine stock, was engaged in the business, and held the standing pine timber so let for the ultimate purpose of converting it into merchantable lumber.

[2-4] Manifestly, the instrxxment in question is a lease, in a sense a grant, of the particular substance produced by standing timber. Milliken v. Faulk, 111 Ala. 638, 658, 20 South. 594; Mt. Vernon Lbr. Co. v. Shepard, 180 Ala. 148, 155, 50 South. 825; Millikin v. Carmichael, 139 Ala. 226, 35 South. 706, 101 Am. St. Rep. 29; Brooks v. Cook, 141 Ala. 499, 505, 506, 38 South. 641. The case of Ferris v. Hoglan, 121 Ala. 240, 25 South. 834, involved a different character of subject-matter. Such leases are limited to 20 years. Code, § 3418. The intent of the instrument in question was to invest Howell and Hoover, or their assignee (Burton), with the right to extract turpentine from the standing pine timb.er on the large areas, separated-into two or more tracts, described in the instrument. In this instrument the parties made no stipulation as to the period within which the extraction of the turpentine on the whole area should be accomplished or the right thereto should terminate, though it is quite clear that the right of the lessee, availed of seasonably, to work all the timber oh the land was assured. The writing being silent in respect of the period of enjoyment of the right assured, the law presumes the parties intended it should exist for sxxch reasoxxable time as would allow ‘the lessee to avail of the right assured, and to restore the lessor to his original status of right to axxd possession of the trees. Pratt ‍​‌‌​​‌‌‌​​​​​‌‌‌‌​​‌​​‌‌​‌​‌‌‌​​​​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​‌‌​​​​‌‌‌‌​‌‌‌​​​‌‌‌‌​​​‌​​​​​​‌​​‌‍Con. Coal Co. v. Short, 191 Ala. 378, 390, 68 South. 63. When the facts bearing on the matter are full and .undisputed, what is a reasonable time is a question of law, to be decided by the court. Continental Jewelry Co. v. Pugh, 168 Ala. 295, 302, 303, 53 South. 324, Ann. Cas. 1912A, 657; L. & N. R. Co. v. Hestle, 200 Ala. 137, 139, 75 South. 885, among others.

[5] A blank form was used by the parties iix constituting this instrument. The words prescribing that the “cutting” should begin “in the fall of 1911” were inserted in handwriting. To the extent these words modify or contradict other terms printed in the form, the writteix, ixxterpolated words are accorded a controlling effect in the construction of the whole instrument. Denson v. Caddell, 201 Ala. 194, 195, 77 South. 720. The applicability of this rule depexxds, as its statement imports, upon inconsistency betweeix the printed terms and the interpolated written terms. It is not presumed that parties will insert inconsistent, irreconcilable provisions in their contracts; axxd the courts will endeavor to reconcile discrepancies, if that can be reasonably done, to the end that every clause may have appropriate effect. John Deere Plow Co. v. City Hdw. Co., 175 Ala. 512, 515, 516, 57 South. 821.

[6, 7] The only conflict between the interpolated expression and the printed terms (quoted ixx the statement ante) is with respect to the commencement of the work, the “cutting.” The prixxted requirement was general, did xxot prescribe the time the heginniug should be made, and did not require the cutting to be begun, in the fall of 1911, upon each separate tract or upon every productive tree on the whole area (over 3,000 acres) or every productive tree on separate tract. The prescription of a “term of four -years” is referable as. a limitation, to the lessee’s or. sublessee’s right to extract turpentine from a “portion” ‘of the sxxbject of the lease, “beginning with refereneb to each portion thereof from the winter that the boxing and working of each ‍​‌‌​​‌‌‌​​​​​‌‌‌‌​​‌​​‌‌​‌​‌‌‌​​​​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​‌‌​​​​‌‌‌‌​‌‌‌​​​‌‌‌‌​​​‌​​​​​​‌​​‌‍portion is commenced.” *511 This period (4 years) was designed to fix the time the lessee was allowed to appropriate the resin from that separate “portion” or tract on which “boxing,” etc., had been done, the period (4 years) to begin — as far as that “portion” or tract was concerned — from the winter any part or number of the trees on such “portion” or separate tract were cut and prepared to produce turpentine, a seasonable “crop.” In view of the terms of the entire instrument, the subject-matter of the contract, and the circumstances surrounding the parties, it is unreasonable to suppose that the parties entertained the purpose to invest the lessee or any sublessee with the unrestricted discretion, after “beginning in the fall of 1911” to prolong the right to take the turpentine, even for 20 years after 1911, by initiating the 4-year period prescribed with reference to the boxing or cutting, for turpentine purposes, of each tree on so great an aggregate area. Unless the construction indicated is adopted, the only alternative is the acceptance of that unreasonable interpretation. It is always presumed that parties intend to make a reasonable, rational contract. Only the terms they employ can invite or justify a conclusion to the contrary. Birmingham Water Works Co. v. Windham, 190 Ala. 634, 637, 638, 67 South. 424. In other words, to summarize the construction taken: The lessee must have begun “cutting” on some one of the “portions,” meaning separate tracts, in the fall of 1911. Within a reasonable time after the fall of 1911 the lessee must have begun to work other tracts on which no cutting had been begun; and, having begun to cut on a separate “portion” or tract, the stipulated “four-year” period began to run, and upon its termination as respects a separate tract or “portion,” the right of the lessee or sublessee to gather the product ceased and determined. Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776; Mt. Vernon Lbr. Co. v. Shepard, 180 Ala. ‍​‌‌​​‌‌‌​​​​​‌‌‌‌​​‌​​‌‌​‌​‌‌‌​​​​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​‌‌​​​​‌‌‌‌​‌‌‌​​​‌‌‌‌​​​‌​​​​​​‌​​‌‍148, 155, 60 South. 825.

From these considerations it cannot he affirmed as upon the averments of the amended bill that the lessee‘s or sublessee‘s right to take turpentine from a particular separate “portion” or tract or tracts has terminated, that depending ou when the cutting was begun on a separate tract or portion, the stipulated 4-year period commencing to run when “the cutting” of the separate tract or portion was made. The amended bill avers that the “cutting” was commenced, as the contract required, in the fall of 1911. The tract (at least one) on which this “cutting” was begun was subject to the stipulated 4-year limitation, and hence expired with the season of 1915. If the “cutting” was then (1911) begun on two or’ more separate tracts or portions (of the large area), the right to work such tracts or portions expired with the season of 1915. The averments of the bill are not sufficiently discriminative to permit a pronouncement with respect to the expiration of the right to take turpentine from separate, definitely described tracts.

[8, 9] The allegations of the bill, too elaborate to justify their reproduction, efficiently invoked the court’s jurisdiction to prevent waste. So the court below decided. Woolworth v. Nelson, 204 Ala. 172, 85 South. 449, 452, 13 A. L. R. 820. Neither irreparable damage nor the insolvency of the lessee or sublessee in possession are factors essential to the equity of a bill, by the landlord or lessor, to prevent waste. Woolworth v. Nelson, supra. The lease obligated the lessee and any sublessee “to use all reasonable precaution to protect” the standing pine timber and also “to rake the trees every year” while the contract continued with the design to minimize, if not prevent, the hazard of forest fires in the timber worked for its turpentine. We do not find in the instrument a stipulation defining how the timber should be treated to extract the product. That was left to the control of the custom, method, and care ‍​‌‌​​‌‌‌​​​​​‌‌‌‌​​‌​​‌‌​‌​‌‌‌​​​​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​‌‌​​​​‌‌‌‌​‌‌‌​​​‌‌‌‌​​​‌​​​​​​‌​​‌‍with which such work is usually done in this part of the country. It was the duty of the lessee and any sublessee to meet the obligation of “reasonable precaution” set down in the instrument. The working of the timber must have been done according to the generally accepted method, and such timber loss as resulted from that character of action was not chargeable to the lessee or to the sublessee. Negligent, destructive methods were abusive- of the right, and for damage to the timber, due to the wrong of the sublessee, legally attributable thereto, the lessor is entitled to he remunerated. Having acquired jurisdiction for the purpose of preventing future waste — including the hazard involved- in the sublessee’s alleged failure “to rake” the trees — the court should, as was held below, determine the questions involving the ascertainment of damages claimed.

The hill is not multifarious.

The action of the court in overruling the demurrer is affirmed.

Affirmed.

ANDERSON, C. X, and SOMERVILLE and THOMAS, JX, concur.