186 So. 85 | La. | 1939
This is a contest over the title to the standing timber on 80 acres of land belonging to the defendants. The plaintiff, lumber *735 company, claiming to be in possession as owner of the timber, brought an action for slander of title against the defendants, heirs of John E. Burns. They, answering the suit, admitted that they were claiming title to the timber; hence they set up a reconventional demand to be decreed the owners of the timber. The suit was converted thus into a petitory action, in which the heirs of Burns became the plaintiffs, and the lumber company the defendant. The lumber company, by way of an exception of no cause of action, and again by objecting to the defendants' offering of proof of their title to the timber, protested against the defendants' being allowed to convert the suit into a petitory action. The exception and objection were overruled; and the trial of the case resulted in a judgment for the Burns heirs, declaring them to be the owners of the timber. The lumber company is appealing from the decision.
The first complaint of the appellant is that the judge of the district court should not have allowed the defendants in the action for slander of title to convert the suit into a petitory action without the consent of the plaintiff in the original suit. This complaint is founded upon the argument that an action for slander of title, or a jactitation suit, is of the nature of a possessory action, and, according to article 55 of the Code of Practice, such an action is not convertible into a petitory action without the consent of the plaintiff. The appellant cites in support of the argument Miller v. Albert Hanson Lumber Co.,
"It would be idle," said the court in McConnell v. Ory, supra, 15 So. 425, "to order the defendant [in a jactitation suit] to institute another suit to establish title, when by his answer he tenders that issue."
On the 3rd day of March, 1922, John E. Burns, father of the parties who were made defendants in this jactitation suit, sold to the W.R. Pickering Lumber Company, for $350 cash, the standing timber, now in contest, on his 80 acres of land described as W 1/2 of NW 1/4 of Sec. 14, T. 3 N., R. 6 W. In the deed it was stipulated that the lumber company, or its successors or assigns, should have the right of ingress upon and egress from the land, with wagons, teams, tram roads, railroads, or any other means that the grantee might see fit to employ for the purpose of turpentining the timber, or removing it from the land, and for the purpose of turpentining or removing any other timber that the lumber company then owned or might thereafter acquire. This stipulation in the deed was limited by this concluding phrase: "all of which said privileges, rights, ways and easements hereby granted shall be and remain in full force and effect for the period of fifteen years from and after the date hereof."
By an act of exchange, on September 17, 1923, the Crowell Spencer Lumber Company acquired from the W.R. Pickering *738 Lumber Company the timber on several tracts of land, including the 80 acres belonging to John E. Burns; and in the act of exchange it was stipulated that the Crowell Spencer Lumber Company should have the period of 25 years in which to cut and remove the timber from the lands. The same time limit was put upon the right of the W.R. Pickering Lumber Company to cut and remove the timber which that company acquired by the act of exchange.
John E. Burns died, intestate, on the 27th day of June, 1928, and his wife died, intestate, on the 12th day of May, 1929. The parties who were made defendants in this jactitation suit — and who are now the plaintiffs in the petitory action — are the sons and daughters of John E. Burns and his wife, and, as such, they inherited the 80 acres of land on which the timber in contest stands, together with such reversionary right as John E. Burns and his wife had in and to the timber itself. The fifteen years mentioned in the deed from Burns to the W.R. Pickering Lumber Company expired on the 3rd day of March, 1937. Thereafter, and from that date, the heirs of John E. Burns and wife claimed title to the timber, and offered it for sale, and thus provoked the bringing of this jactitation suit by the Crowell Spencer Lumber Company.
It is well settled that if, in a sale of standing timber, a time limit upon the right of the buyer to remove the timber from the land is fixed in the deed, the title to the timber that is not removed within the time stipulated reverts to the seller, *739
or to his successors or transferees. St. Louis Cypress Co. v. Thibodaux,
The attorney for the appellant in this case, as we understand, does not dispute the doctrine of the cases which we have cited, but depends upon the decisions to the effect that, when no time limit is fixed for the removal of the timber, in an act of sale of standing timber, the omission to fix the time limit does not render the contract null, but the buyer of the timber has a reasonable time in which to remove it, and the seller has a right of action to have this reasonable time fixed by a judicial decree, viz.: Shepherd v. Davis Bros. Lumber Co.,
"But this court has never held that where the parties have agreed upon a delay in which to remove the timber, such delay might be extended by the court; not even in Savage v. Wyatt Lumber Co. [
"It will thus be seen that this court has always held, whether before or since the act [No. 188] of 1904, that standing timber was property subject to be acquired separately from the land on which it grows; but that when sold it must be cut and removed within the period agreed upon by the parties or fixed by the court in default of agreement; otherwise said timber reverts to the owner of the land. The act [No. 188] of 1904 had no other effect upon the status of standing timber so sold except to declare it an immovable, where before that it might have been argued that it was a movable; into the reason and purpose whereof we find it unnecessary to go at this time."
The attorney for the appellant in this case argues that the deed from John E. Burns to the W.R. Pickering Lumber Company was an absolute sale of the standing timber, for a cash consideration, and that the additional grant, for the period of fifteen years, of the rights, ways and privileges necessary for the removal of the *741 timber, was merely a grant of a servitude, and did not put a time limit upon the right to remove the timber. Our interpretation of these clauses in the deed is that they did plainly put a time limit of 15 years upon the right of the W.R. Pickering Lumber Company to remove the timber. The stipulation that the "said privileges, rights, ways and easements hereby granted shall be and remain in full force and effect for the period of fifteen years" was the same as to say that the said privileges, rights, ways and easements should terminate at the end of fifteen years. The W.R. Pickering Lumber Company could not convey to the Crowell Spencer Lumber Company any longer period in which to remove the timber than the W.R. Pickering Lumber Company acquired from John E. Burns.
The judgment is affirmed.
