79 Wash. 336 | Wash. | 1914
Lead Opinion
The plaintiffs, claiming to be the owners of a tract of land in Pacific county, commenced this action in the superior court for that county, seeking recovery of damages from the defendant for cutting and removing timber therefrom. A trial before the court without a jury resulted in findings and judgment in favor of the plaintiffs for $9,000 damages, from which the defendant has appealed.
The real controversy is over the title to the timber upon the land. Appellant claims title to the timber through conveyance thereof from William J. Dyer, the original patentee of the land, while respondents claim title to both the land and the timber through a tax foreclosure and deed thereun
On November 16, 1892, William J. Dyer, by deed duly executed and acknowledged, conveyed the timber upon the land, with the right of entry and removal, to G. H. Mooers, the granting language of the conveyance being as follows:
“By these presents do grant, bargain, sell and convey unto said G. H. Mooers, his heirs, personal representatives and assigns, all timber and trees (inclusive of both standing trees and fallen trees) upon the south half of the southeast quarter and the south half of the southwest quarter of section SO in township 11, north of range 8 west of the Willamette meridian, in Pacific county, state of Washington, and the right of entering upon said land and removing said timber and trees from the same at the pleasure of said grantee, his heirs, personal representatives and assigns and of doing all things necessary to log or remove said timber without unreasonable damage to said land. To have and to hold the said granted property and privileges to the said G. H. Mooers, his heirs, personal representatives and assigns forever.”
On July 1, 1902, Mooers conveyed this same timber with the right of entry and removal to the Deep River Logging Company, appellant, using this same language in the granting portion of the conveyance. Both of these conveyances were duly recorded in the office of the auditor of Pacific county soon after their execution, as deeds to real property.
In July, 1907, respondents having become the owners of the lien charged against the land for general taxes in the years 1902 and subsequent years, evidenced by certificates of delinquency and tax receipts, commenced foreclosure of their lien in the superior court for Pacific county against William J. Dyer and Deep River Logging Company. Thereafter, such proceedings were had in that foreclosure action that judgment and order of sale of the land was rendered therein, sale of the land in pursuance thereof was made, at which the respondents became the purchaser thereof, and a tax deed was accordingly issued to respondents by the treas
Counsel for appellant first contended that respondents’ tax deed did not convey to them the title to the timber upon the land, because the timber was constructively severed from the land and became personal property by the conveyance of Dyer to Mooers in 1892. Prior to the act of 1907, Rem. & Bal. Code, § 9095 (P. C. 501 § 23), which became the law long after the assessment and levy of the taxes upon which respondents’ foreclosure and deed rests, we had no statute law touching the question of standing timber being real or personal property for purposes of assessment and taxation when separately owned. It is elementary law that standing timber is real property — as much so as the land on which it stands — when the title to both the timber and the land is vested in one ownership. It may now be regarded as the settled law of this state, in harmony with the decided weight of authority elsewhere, that conveyance of standing timber, with the right of entry upon the land and removal of the timber therefrom in the future, whether the time of removal be measured by stated or reasonable time, is within our statute requir
It is plain, therefore, that the timber here involved was, in any event, real property until conveyed by Dyer to Mooers in 1892, and that its conversion into personal property depends entirely upon the effect of that conveyance. Manifestly, the timber did not become personal property unless it became such by virtue of that conveyance. The conveyance by Mooers to appellant thereafter had no effect upon this question.
There have been two decisions rendered by this court which may seem to have some bearing upon this question. In Brodack v. Morsbach, 38 Wash. 72, 80 Pac. 275, there was under consideration a duly executed and acknowledged written contract for the sale of standing timber. Some contention was there apparently made that the contract did not in form amount to a conveyance, but it having recited full payment of the consideration, it was held by the court to be in effect a conveyance of the timber carrying an implied license to remove it from the land. A subsequent purchaser of the land had actual notice of the conveyance of the timber and was held not to have acquired the timber with the land, this being the main question involved. In a per curiam opinion so holding, this court, among other things, said:
“Conceding that the sale of the growing timber was a sale of an interest in the land, upon the execution and delivery of the contract of sale, the timber became personal property, and the only interest the defendants had, or could claim, in the land upon which the timber stood was an implied license to enter and remove the timber.” Brodack v. Morsbach, supra.
In the recent case of Engleson v. Port Crescent Shingle Co., 74 Wash. 424, 133 Pac. 1030, we had under consideration a situation leading to a decision in substance somewhat inconsistent with the remarks of the court above quoted from the Brodack case. The action was to recover compensation for services rendered in effecting a sale of standing timber. Recovery was denied by this court on the ground that there was no contract for such service evidenced in writing, as required by Rem. & Bal. Code, § 5289 (P. C. 203 § 3), rendering void, if not evidenced in writing, “any agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission.” The standing timber involved in that case was, in part, upon lands owned by appellant and, in part, upon lands owned by third persons who had sold the timber thereon to appellant, appellant being the defendant in the action, from whom commission upon the sale of the timber was sought to be recovered. The decision in that case was, in effect, a holding that no part of the commission could be recovered, notwithstanding a portion of the timber sold by the plaintiff claiming commission was owned by the defendant separate from the ownership of the land by another. It would seem that, if appellant’s contention in the case before us be well grounded, the plaintiff in the Engleson case, would have been entitled to recover upon the oral contract, so far as he was entitled to commission for the sale of the portion of the defendant’s timber owned by him separate from the land. The question, however, does not seem to have been presented for consideration in that
A number of decisions of the courts are brought to our notice, holding that standing timber, when sold by the owner of the land, with the right of entry and removal, ceases to be real property and becomes personal property. The decisions so holding, rendered since 1850, to which our attention has been called, upon examination, will be found to involve sales of timber with the right of entry and removal for a fixed, limited period, or cases where such right of entry is subject to be revoked upon notice by the landowner. In Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173, the right of entry and removal was limited to three years. In Fairbanks v. Stowe, 83 Vt. 155, 74 Atl. 1006, 138 Am. St. 1074, the right of entry and removal was limited to five years. In Montgomery v. Peach River Co., 54 Tex. Civ. App. 143, 117 S. W. 1061, the right of entry and removal was limited to approximately seven years; besides, the land was school land and in no event taxable, while the timber was owned by a private person and was held to be taxable as personal property of such person. In Barber v. Rodgers, 71 Pa. St. 362, the right of entry and removal was subject to be revoked upon thirty days’ notice. At pages 366, 367, the court observes:
“If the agreement does not contemplate the immediate severance of the timber it is a contract for the sale or reservation of an interest in land, and until actual severance the timber in such case passes to the heir, and not to the personal representative. But when the agreement is made with a view to the immediate severance of the timber from the soil, it is regarded as personal property, and passes to the executor and administrator, and not to the heir ... If the reservation had been made of a perpetual right to enter on*343 the land and cut all the pine and hemlock timber growing thereon, or of a right to cut and take it off at discretion as to time, then it would be within the rule laid down in Yeakle v. Jacob, 9 Casey, 376, and Pattison’s Appeal [61 Pa. St. 294], and be regarded as an interest in land, which would pass to the heir and not to the administrator on the vendor’s death.”
This is a recognition of a distinction between the effect of an agreed immediate removal or upon notice, and an agreement to preserve the right of entry and removal for an unlimited time. Our attention is also called to Warren v. Leland, 2 Barb. 613, decided in 1847. That decision, however, and the numerous earlier decisions there reviewed, we regard as of little practical aid to the solution of the question here involved. They furnish but little light touching the nature of such a continuing right of entry upon land and removal of the timber therefrom as is here involved.
Now, assuming, but not deciding, that a conveyance of standing timber, with the right to enter upon the land and remove it within a stated or reasonable time, such as would be held to mean presently, that is, within such time as would enable the grantee, under ordinary circumstances, to conveniently remove it, having in mind its quantity, and the size of the task of its removal, would have the effect of converting the timber and the right of entry for its removal into personal property, did the grant of this timber, together with the right of entry and removal thereof, made by Dyer to Mooers in 1892, convert the same into personal property? Recurring to the language of that conveyance, it will be noticed that it gave to Dyer and his assigns “the right of entering upon said land and removing said timber and trees from the same at the pleasure of said grantee, his heirs, personal representatives and assigns ... to have and to hold the said granted property and privileges to the said G. H. Mooers, his heirs, personal representatives, and assigns forever.” We italicize the words we regard as controlling here. This language points, we think, conclusively to an intention on the
. If this property right acquired by Mooers and his grantee, appellant, became personal property by Dyer’s conveyance, manifestly, it then ceased to be an interest in real estate, and could thereafter be conveyed otherwise than by deed; interest in real estate being required to be so conveyed by Rem. & Bal. Code, §§ 8745, 8746 (P. C. 143 §§ 1, 3), leases for less
It is next contended that the tax foreclosure upon which respondent’s tax deed rests was of no force or validity as against appellant, because appellant was not personally served with summons therein. Appellant is an Oregon corporation. William J. Dyer, the owner of the land at the time of the tax foreclosure, was then also a resident of Oregon. Service was had in the tax foreclosure action by publication. No contention is made against the sufficiency of that publication or the prima facie showing then made upon which it rests; the contention being only that appellant then had officers
“During the years 1906, 1907 and 1908 I was actually on the land down there near the Nasel river. I was not there continuously. It might have been a month or two between each time I was over there. I was manager of the company. It was my duty to do the operating and get the logs out of there. I was the statutory agent of the corporation here in 1906 and 1907. We were shut down part of the time, but never closed down the entire plant for any period to exceed from two to four weeks. I go down at least every two weeks. This was true in 1907.”
We are of the opinion that this is not sufficient to overcome the presumption of the court having acquired jurisdiction in the tax foreclosure action as evidenced by the proceedings and recitals of the judgment rendered therein. Ballard v. Way, 34. Wash. 116, 74. Pac. 1067, 101 Am. St. 993; Nolam v. Arnot, 36 Wash. 101, 78 Pac. 463.
Contention is made against the sufficiency of the treasurer’s deed, issued to respondents upon their becoming purchasers at the tax sale held under the foreclosure, in that, as proven •upon the trial, the treasurer’s signature was not subscribed at the foot of the deed. The original deed of the treasurer
The judgment is affirmed.
Crow, C. J., Fullerton, and Morris, JJ., concur.
Dissenting Opinion
(dissenting) — I dissent. It seems clear to me that the deed from Dyer to Mooers in 1892 severed the timber from the land, so that thereafter the timber and the land for all purposes became separate properties, one personal and the other realty, in different owners. The case of Brodack v. Morsbach, supra, so holds and the cases Skamania Boom Co v. Youmans and Healy v. Everett & Cherry Valley Traction Co., supra, hold to the same effect.
Taxes thereafter levied upon the land did not affect the timber and a sale of the land for taxes did not carry the timber. The ownership of the timber is still in the appellant. The judgment is therefore Wrong and should be reversed.
