Golden v. Glock, 57 Wis. 118

57 Wis. 118 | Wis. | 1883

Cassoday, J.

The bill of sale or deed to the parties under whom the plaintiff claims, undoubtedly transferred an interest in the land. Strasson v. Montgomery, 32 Wis., 52; Young v. Lego, 36 Wis., 394; Daniels v. Bailey, 43 Wis., 566. By its terms it purported to give title to the timber named, to be removed within the time specified. Upon the one side it is claimed that such title continued after the expiration of the time specified, and on the other that it then terminated. Both sides invoke the decision of this court in support of their diverse contentions, and cite Rich v. Zeilsdorff, 22 Wis., 544; Strasson v. Montgomery, 32 Wis., 52; Martin v. Gilson, 37 Wis., 360.

In Rich v. Zeilsdorff the deed reserved the right to cut and remove the timber within two years, and it was “ held that the absolute right of property in the trees was not excepted out of the estate granted, but only a right reserved to enter within two years, to cut and remove the same.” In Martin v. Gilson the reservation was quite similar, and the decision was the same way.

Strasson v. Montgomery was more like the case here presented. In that case the defendant claimed the trees and timber under a deed executed December 4, 1866, by one Grleason to one White, whereby all the trees and timber on the land were bargained, sold, and conveyed to White, but with this proviso: “Provided, always, and these presents .are upon this express condition, that the said party of the .second part shall take all of said trees and timber off of said lands within four years from this date.” It also contained •a. covenant of warranty. Subsequently White sold and conveyed the trees and timber to the defendant. The plaintiff, on the other hand, claimed the trees and timber under and by, virtue of a deed of the land to him from Gleason, executed in ■September, 1867, wherein Gleason had reserved to White the ¡right to take off the timber until December, 1871. The action was for removing trees and timber in November, 1871, being ■after the expiration of the four-years’ limitation in the deed to White, but prior to the time fixed in the reservation in the ■deed to the plaintiff. The court held, that notwithstanding the time fixed in the reservation in the deed to the plaintiff had not expired, yet that the defendant had no right to cut ■and remove the timber after the expiration of the four-years’ limitation in the deed to White.

That case is substantially like this, unless the fact that the words fixing the limitation in the deed under which the plaintiff here claims, not being in the form of a proviso, as in the deed to White, makes the two cases distinguishable. After careful consideration, we are constrained to hold that the two cases are not distinguishable in principle by reason of the difference in the phraseology employed. In the deed before us it is expressly “ agreed and understood ” that the timber transferred “shall be removed within” the time named, and hence the grant was necessarily made upon that condition. As stated in substance in Strasson v. Montgomery, the legal effect of the instrument was to convey all of the trees and timber designated, which should be removed within the time prescribed, and that such as remained thereafter should belong to Allen or his grantee of the premises. Such being our construction of the deed, we must hold that under the rule adopted in Btrasson v. Montgomery the plaintiff here had no right to any of the trees and timber not removed from the premises prior to April 27, 1880, at which time the limitation in the deed ünder which he claimed expired. But here the stave bolts were cut before the time limited in the deed. The trees from which the bolts were manufactured having thus been severed from the soil prior to the expiration of the time limited, and their character essentially changed by such manufacture, so that the product became personal property, we think they were, in effect, thereby removed from the premises within the meaning of the conditions in the deed, and hence that the plaintiff, even after the expiration of the two years, had an implied right or license to go upon the premises and take therefrom the stave bolts so manufactured. Because the trial court held to the contrary, the judgment must be reversed, and the cause remanded with direction to enter the proper judgment for the plaintiff.

By the Court.— It is so ordered.