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
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
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
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,
We are of the opinion that this case should he, and it is, reversed and remanded.