94 Me. 242 | Me. | 1900
Trover for the conversion of certain pine, spruce and cedar logs.
The defense is:
I. That the logs were cut from common lands of the plaintiffs and defendant.
Massachusetts, in 1850, being the owner of Township 13, Range 7, westerly from the east line of the State, containing 22,040 acres,
There are cases which hold that a conveyance by one tenant in common of a specific quantity or parcel in severalty is inoperative against the co-tenants and voidable by them. One case of that sort is cited at the bar. Phillips v. Tudor, 10 Gray, 78. There, one tenant in common conveyed 64 rods from the common land, and it was held that, if the deed be valid as against all persons, except the other tenants in common, it could not take effect until the grantee had entered and made certain the parcel that he claimed to hold. So in Soutter v. Porter, 27 Maine, 405, it is held that a conveyance by one tenant in common of a part of the common property by metes and bounds, though inoperative against the co-tenants, may operate to convey the land to the grantee, when the grantor’s part of the common property shall have been set out to him or his interest comprising it.
A deed by tenants in common with others of a specific number of acres from the common lands, less than their share, is valid, and conveys a fraction of the estate. Small v. Jenkins, 16 Gray, 155; Jewett v. Foster, 14 Gray, 495; Battel v. Smith, 14 Gray, 497; Gibbs v. Swift, 12 Cush. 393.
In Brown v. Bailey, 1 Met. 254, much relied upon by the plaintiffs at the bar, a testator devised one-fifth of his real estate to a son “to be taken where he shall choose or select at its just and proportionable value.” The court held that the estate vested, with a privilege for the devisee to exercise or not at pleasure on partition.
Apply these doctrines to the deed in question. The grantor owned the whole township. It conveyed 2000 acres, not from
We think the defendant is a tenant in common with plaintiffs of the east half of the township in the proportion that 2000 acres bear to the whole acreage of that half of the township.
We also think that defendant is a tenant in common with plaintiffs of the west half of the township in the proportion that 2000 acres bear to the whole acreage of that half of the township.
We also think that the right of selection that might have been exercised by defendant, in both halves of the township, has been lost by lapse of time. It was a privilege to have been exercised within a reasonable time, and we think that has long since elapsed. The property was wild land, covered with growing timber. Portions of it may have been cut, of which defendant was entitled to her share, and it would be unfair to allow a selection to be now made from that portion uncut. That would be unequal and unjust. When no time is fixed within which an act is to be done, the law fixes a reasonable time. Weymouth v. Gile, 83 Maine, 437; Mitchell v. Abbott, 86 Maine, 338.
For the logs cut from the common lands by the defendant, to which she has no other title than as tenant in common, the plaintiffs may have damages, for the conversion of their shares therein. Wing v. Milliken, 91 Maine, 387; Wheeler v. Wheeler, 33 Maine,
II. That the pine and spruce trees from which the logs were cut were the property of- defendant.
In the deed from Massachusetts, before mentioned, under which defendant claims title, was the grant “of all the pine and spruce timber standing on said township .... to be taken off from time to time to suit their [grantees,] convenience.” If lots were sold for settlement, the timber was to be removed the next lumbering season after notice to grantees or their assigns of the sale, or “as soon thereafter as may be practicable.” The sale of the timber was not to retard the settlement of the country, nor were the grantees to have recourse to the grantor for any deficiency in the quantity and quality of timber estimated to be upon the township.
It is common learning that the construction to be given deeds must have relation to the time and circumstances under which they were given, and that they are ordinarily to be construed most strongly against the grantor. Field v. Huston, 21 Maine, 69. The converse rule, however, applies to grants by the sovereign power when not purely commercial and especially when they are gratuitous and are not moved by a full and adequate consideration.. Here the consideration was 117,479.96. This grant is clearly enough of pine and spruce trees standing on the land at the date of the deed, and of none other, to be removed at the convenience of the grantees or their assigns. Putnam v. Tuttle, 10 Gray, 48.
It is contended at the bar that the grant is not only limited to trees standing on the land at the date of the deed, but to pine and spruce trees then suitable for timber.- But the grant is not of trees suitable for timber. It is of “ pine and spruce timber.” Now the word “timber” should be given tbe meaning suited to the purposes of the grant apparent from the whole deed. The timber of commerce is squared sticks of wood used in building. The trees from which they were cut became known as timber trees. “ Command them that they hew me cedar trees out of Lebanon.” “I will do all they desire concerning timber of cedar and timber of
The grantor’s purpose, as expressed in the deed, was to foster the settlement of public domain, and, in furtherance of that purpose, it sold the pine and spruce in question, to be removed so that the land could the more easily be cleared. Its pm’pose was to clear the growth without regard to size, giving the grantees their own time to do so, but always fast enough to accommodate settlers. It wanted the forest cleared, not preserved; and we think, under all the circumstances, the meaning of “pine and spruce timber” was understood to be pine and spruce growth; that the word timber was not used in the sense of tiees, suitable to then make timber, but as synonymous with trees or growth. There could have been no object to give to the word a different meaning, and we think the whole grant shows the purpose to have been not to grant trees only suitable for timber, but rather trees of the bind for timber, pine and spruce, timber trees. In other words, to grant the right of lumber from the pine and spruce standing at the date of the deed, at the grantees convenience until the then existing growth should have been removed, but fast enough to not retard settlement of the lands. Any other construction would be both inconvenient and lead to controversies that might be interminable. It is well known that pine and spruce lands in the region of this township do not reproduce the same kind of growth.
Nor is this construction of the deed an unnatural or strained one. The word “timber” is given meaning to fit the sense in which it is used. It may mean “ wood suitable for building houses or ships,
In this State and some others the conveyance of growing trees to remain alive upon the land and to be cut in the future, is a conveyance of an interest in land, that may nourish and support the growth conveyed. The trees become chattels only when severed from the soil. Until then they are a part of it. Dunn v. Burleigh, 62 Maine, 24; Hoit v. Stratton Mills, 54 N. H. 109; Howe v. Batchelder, 49 N. H. 204; Plumer v. Prescott, 43 N. H. 277; Kinysley v. Holbrook, 45 N. H. 314; Olmstead v. Niles, 7 N. H. 522; Putney v. Day, 6 N. H. 430; Heflin v. Bingham, 56 Ala. 566; Clap v. Draper, 4 Mass. 266; White v. Foster, 102 Mass. 375.
It is not, as before said, a strained construction to hold that ordinarily a grant of growing timber to be construed most favorably to the grantee, conveyed the growth named with its increase, until the time for removal shall have elapsed. This seems to be the view taken in Pease v. Gibson, 6 Greenl. 81, although other questions were decided, and in Howard v. Lincoln, 13 Maine, 122. Putney v. Day, 6 N. H. 430, apparently adopts it. See Knott v. Hydrick, 12 Rich. 314.
Goodwin v. Hubbard, 47 Maine, 395; Strout v. Harper, 72 Maine, 270, and Foster v. Foss, 77 Maine, 279, throw but little light upon the question, but contain nothing against it.
In McIntyre v. Barnard, 1 Sanford Ch. 52, cited with approval in Kellam v. McKinstry, 69 N. Y. 264-269, and in Lacustrine F.
There is another Pennsylvania case where the grantor reserved “all the pine timber” with the right to cut and remove it for twelve years. The court say: “The limitation upon the right of entry was a limitation upon the exception itself. It was a reservation of the timber for twelve years and no longer. After that time, the trees remaining passed with a grant of the soil to which they were attached. This is the construction placed upon such agreements in the lumber regions where they are frequent, and it accords with reason and common sense.” Saltonstall v. Little, 90 Pa. St. 422; Boisaubin v. Reed, 1 Abbt. 161. Contra, Irons v. Webb, 12 Vroom, 203.
A sale of merchantable standing timber conveys that particular timber only and at once. Haskell v. Ayers, 35 Mich. 88. Same as to saw timber, Monroe v. Bowen, 26 Mich. 522.
The precise question, here at issue, does not seem to have been very much considered by' tbe courts, and therefore it must be decided by applying the most reasonable construction to the deed of the parties. Where, as in this state, the grant of growing trees to remain affixed to the soil or the exception of them from the grant, is an interest in land, it is logical to consider the trees, and the right in the soil, and the growth of them as a unit and inseparable. Their owner is entitled to their increase. The grant of trees, or' timber, or particular kinds of timber trees, should be held a grant of the growth, standing at the time of the grant. If the grant limit itself by size of tree, age, or adaptability for specified uses, then of course the particular described tree would pass and none
That must have been the purpose of the grant in question. Massachusetts said to the grantees, for a valuable consideration, you may “log” fot pine and spruce on the township at your pleasure, but fast enough to clear the land for settlers as they may come.
But it is said that the grant was limited to the grantees and could not be°conveyed by them. We do not think so. The grant was of an interest in land, to be held by the grantees, “their heirs and assigns, to their use and behoof forever.” The cases already cited sustain this view. See Baxter v. Mattox, 106 Ga. 854.
Our conclusion is that the plaintiffs and defendant are tenants in common of the township, and that plaintiffs may recover the value of their shares in the cedar logs cut by defendant, and also in any pine and spruce so cut that were not standing at the time of conveyance to Jewett and March in 1850.
Defendant defaulted.