84 Ark. 603 | Ark. | 1907
(after stating the facts.) In the case of Liston v. Chapman & Dewey Land Company, 77 Ark. 116, it was held that “in the absence of something in the instrument itself, or in the proof aliunde, showing a contrary intention, a deed to standing merchantable timber which specifies no- time for its removal qonveys a terminable estate in the timber, which ends when a reasonable time for the removal of such timber, after the execution of the deed, has expired.” In that case, the court said: “What is a reasonable time is generally a mixed question of law and fact. The facts are ,to be ascertained by an inquiry into the conditions of the land and timber, the obstacles opposing and the facilities favoring, and the conditions surrounding the parties at the time the contract was made.”
The testimony shows that appellant’s timber cutters commenced work in June, 1899, and cut continuously until about Christmas. That the land was wet and • slashy, and that, on account of the rains; the land become so wet that’ they had to cease work until the following June.
In June, 1900, they commenced cutting again, but were not able to cut as much timber as had been cut the previous year on account of the trouble they had in getting hands. In 1901 they commenced again as soon as it got dry enough, and worked until the injunction was issued. During this time Montgomery was an employee of appellant. He knew the condition of the roads, and that the timber could only be removed with profit during certain seasons of the year. He made no objection that the time was not reasonable. Considering the obstacles in the way and the conditions surrounding the parties, we do not think a reasonable time had elapsed in which to remove the timber.
Appellee claimed that appellant is estopped to claim title in the timber on account of its representations and conduct, and bases his contention on statements made to him by Vantrain, Hooker and W. C. Fiddyment, one of the directors of the appellant company. He says that Hooker and Vantrain told him that appellant was only to have twelve, months in which to remove the timber, and that W. C.' Fiddyment advised him to purchase the land, stating that it was a bargain, and (Jid not' tell him that appellant claimed more time in which to remove the timber. Hooker says he was only the bookkeeper of appellant, and had no authority to bind it in regard to timber deals, ánd that he only expressed the opinion to appellee that twelve months was a reasonable time within which to remove' the timber. Vantrain was not even an employee of the appellant. He had no connection in any way with the company except to contract with it in regard to cutting timber. The timber deed to appellant was pn record at the time of the purchase of the land by appellee, and appellee had constructive notice of its-terms. Appellant owed appellee no duty to disclose to him what additional time, if any, it would require to remove the timber..
The chancellor should have dismissed the complaint for want of equity. Reversed and remanded with direction to- dismiss the complaint for want of equity.