48 S.E. 588 | N.C. | 1904
On 5 September, 1891, plaintiff conveyed to the Greenleaf-Johnson Company, in consideration of $65, "all the pine timber of and above the size of twelve inches in diameter on the stump when cut, in and upon" a certain tract of land, with the term of fifteen years within which to cut and remove the same. Thereupon, said company entered and cut a part of the timber which measured twelve inches and over, but left some of that size standing. In June, 1902, the (174) Greenleaf-Johnson Company conveyed its interest and estate under said deed to defendant company, which again entered upon the land and cut and removed such timber as had been left by the Greenleaf-Johnson Company, and also cut and removed all of the trees which had attained the size of twelve inches, constructing and operating a railroad upon plaintiff's land for that purpose. As is alleged in the complaint, and not denied, these several acts on the part of the defendant were committed after the same had been forbidden by plaintiff.
Three questions are presented for consideration, to-wit:
1. In determining the measurement, shall the twelve inches be computed from outside of bark to outside, or from inside to inside.
2. If, when the tract is once cut over, and there is left standing trees of the required size, can the grantee enter again at any time during the period of the lease for the purpose of cutting and removing them?
3. If, when the tract is cut over once, and all the trees of the *127 dimensions of twelve inches in diameter and over at the stump are cut and removed, can the grantee enter again at any time during the period of the lease for the purpose of cutting and removing such trees as may have attained the required size between the time of the first and the second cuttings?
As to the first proposition, the natural meaning of the words "twelve inches in diameter," applied to standing trees, would be measurement from outside to outside, bark included. Few things are "closer than the bark to the tree." The construction we place upon the words has the support of precedent. Alcutt v. Lakin,
The second point is against the plaintiff also. There are no words to restrict the purchaser to a continuous cutting. Had the parties so intended, they should have so contracted. It may be inconvenient to the plaintiff to have the purchaser enter a second time and cut down young trees, incidentally, in making his roads, but the seller should have foreseen and provided for this in making his contract. The purchaser in stipulating for "fifteen years" in which to "cut and remove" was evidently providing for his case and leisure in so doing.
The last point is the most important one. In Whitted v. Smith,
No error.
Cited: Banks v. Lumber Co.,