87 W. Va. 391 | W. Va. | 1920
This appeal has brought np for review a decree partially dissolving an injunction inhibiting the cutting and removal of the timber on certain lands, which was awarded to the owners of the lands, upon the theory of an abandonment or forfeiture of the timber rights vested in the assignors of the defendants, by a deed dated, July 17, 1912, and extending over a period of ten years from said date.
Having commenced the cutting of the timber in the winter following the date of the deed, the grantees, W. De Frehn & Sons, took part of it from portions thereof, and, in the fall of 1915, discontinued their lumber operations, removed their timber slide and some of the machinery from their mill, permitted the railroad company to take up the siding they had caused to ,be put in for the purposes of their timber operations, and later sold the building in which some of the mill machinery was stored. By a contract dated, Oct. 7, 1919, they assigned such rights as they had under the deed, to John W. Heltzel and Cora A. Heltzel, and sold them their mill-machinery, equipment and saw-mill building, all for and in consideration of $600.00 and the assumption of liability for unpaid taxes thereon, the amount of which, so far as ascertained, was $49.85. Part of the land, about 25 acres, has not been cut over at all and a considerable amount of merchantable timber was left on the portions on which cutting was done. The deed granted “all of the timber of every kind, character and description either standing, lying or being, except the locust.” It saved to the grantors the right to clear, cultivate and use all land on which there was no timber and portions of the timbered land, after removal of the timber therefrom. After the cutting above mentioned, they cleared, fenced and used certain parts of the cut over land, and the assignees found them in possession thereof.
The injunction awarded inhibited the cutting of any of the
■ The right claimed by the defendants was vested in their assignors by a formal deed which clearly created at least an irrevocable license to cut and take away the timber. In so far as a grant is appropriate and necessary to the accomplishment of 'the expressed purposes of the parties, the instrument contains it. If a deed is requisite, it answers this requirement. Besides, it is founded upon a substantial money consideration, $8,000.00, of which $3,000.00 was paid in cash. It is immaterial whether the instrument of assignment is a deed or not. De Frehn & Sons had clear right and the Heltzels claim under them. The instrument is at least a contract between them under which the latter may act by virtue of the title- of the former. Lewis v. Yates, 62 W. Va. 575, 583; Core v. Faupel, 24 W. Va. 238; Clark v. McClure, 10 Gratt. 305; Pickens v. Stout, 67 W. Va. 422, 435. However, the court below no doubt correctly held it to be in legal effect a deed. Wilson v. Buffalo Collieries Co., 79 W. Va. 279.
The vital question in the case and the only one extensively argued is whether De Frehn & Sons abandoned the right conferred by the deed or can be deemed to have taken off all of the timber they intended to cut. As they had ten years in which to cut and remove it and were wholly unrestrained in any way, during that period, except by the right reserved by the grantors to clear and make use of the lands as they should be cut over, their cessation of operations long before the expiration of that period is altogether consistent with their explanation that they had decided to await a more favorable market and to alter their
A departure in the decree from the written opinion filed by the trial court constitutes no ground for reversal. Presumptively, the court read and understood the decree and knew what the record contained. As’ the timber right has not been lost, the rights of way granted in connection with it and necessary to its enjoyment are still held by the defendants and the decree properly so adjudicates.
These principles and conclusions result in affirmance. of the decree complained of.
Affirmed.