90 W. Va. 136 | W. Va. | 1922
The decree brought here by plaintiffs below responded to the prayer of the bill for the partition of 408 acres of land in Nicholas County, allotted to them and defendants their respective portions and appointed commissioners to execute it. The only cause for complaint by appellants is the- adjudication as to the timber of the tract, the decree awarding all of the timber to defendants, Guinn and Vencill.
Whatever interest the parties may have in the timber on the lands depends upon the significance of the terms used in the conveyance of July 12, 1902, by which Henry Hill and Kate Hill, his wife, for a valuable cash consideration, granted to Guinn and Vencill, “all of the timber entire tract and one hundred forty two acres (142) acres of land in fee being Seventy one two hundred and fourths 71/204 undivided of •the following real estate **** containing 408 acres.” As to the 142 acres there is and can be no controversy; while somewhat imperfectly drawn, the instrument contains all the elements of a deed. It purports to vest and does vest in the defendants title to the 142 acres, not by metes and bounds, but as an integral part of the entire boundary. It created a tenancy in common in the 408 acre tract between the parties. The residue, consisting of 266 acres, remained the property of Hill until April 25, 1903, when he and his wife conveyed 177% acres to the plaintiff, Abraham Frank, Hill still retaining title to 88 2-3 acres. Such was the status of the title until September 25, 1917, when Hill and Frank joined in a conveyance of “one fourth (%) of all their right, title and interest in the timber now growing on the tract” to L. E. McWhorter and H. L. Carney.
Shortly after their purchase, Guinn and Vencill erected or caused to be erected a saw mill on an adjoining farm owned by H. G. Summers, and constructed or caused to be eon-
As the deed of the Hills to Guinn and Vencill on its face imposes no restriction upon the exercise of 'the right of removal of the timber conveyed, it is an unconditional sale thereof, according to their contention, and if so, they can cut and remove it as and when their convenience or market conditions may at any time require, without regard to the interest and convenience of the plaintiffs, or any injury they may experience as a result of such removal. While our decisions have in some instances touched upon the question so raised, as will hereinafter appear, it was not presented as it now is. Other courts have, but their decisions are not harmonious,' as we shall see. Of course the principle which protects freedom of contracts and jus disponendi is not to be ignored, but recognized unless its application produces unreasonable, unnatural and intolerable results, such as would necessarily flow from the exercise of a perpetual claim of right to enter upon the land of another, sever and manufacture into lumber the timber thereon and market the product. Indeed such contracts are so far in general disfavor that even though no-time be specified in which the timber shall be removed "it is very uniformly held that there is an obligation to remove the timber within a reasonable time after the making of the contract.” Williams v. McCarty, 82 W. Va. 158, 166. Au
“Reasonable time” for removal depends upon the facts in each particular case. No hard and fast rule can be promulgated. All of the cases we have examined which announce this doctrine of reasonable time for removal from date of contract, deal with contracts or deeds where the ownership of the land is wholly in the party complaining, and the title to the timber wholly in another. Here that element does not exist. Vencill and Guinn own the timber on the entire tract, also a one-third undivided interest in every acre on which their timber is standing. There is no claim that they have been ousted of possession and lost title; on the contrary their title and common possession is admitted; the suit is for partition. Where the title to the land and timber is wholly separate, perhaps the best view is that taken in Beatty v. Mathewson, 40 Can. Sup. Ct. 557, and cases therein cited, holding the grant to the timber to be a defeasible fee which may be lost upon failure to perform the implied condition to remove the timber “within a reasonable time.” But would it not be anomalous to require the owner of the land to remove his own timber therefrom or else forfeit his timber title? Plaintiffs and defendants, Vencill and Guinn, are tenants in common in the ownership of the land. They hold by several and distinct titles emanating from the same source and have unity of possession, neither one knows his own severalty; they occupy promiscuously. Their possession is per mie et per tout, that is, each of them has the entire possession as well of every part as of the whole. They are ‘ ‘ common tenants. ’ ’ It would serve no purpose to dwell upon their rights and reciprocal duties as such. They
Defendants have never abandoned their land nor their timber. They were always in possession. There had been no ouster. None of the common owners were in actual possession. It will be further observed that the deed does not convey merchantable timber; on the contrary it grants all of the timber.
It máy be well to further consider the doctrine- of title and “reasonable time for removal.” Judge BRánnon said in Key
While the decisions are uniform as to the right of removal of timber purchased within a reasonable time, the same decisions are in apparently hopeless confusion as to the state of the title in the timber remaining upon the land after the expiration of a period of time deemed reasonable for its removal. As analyzed by Judge Ritz in Williams v. McCarty, cited, there are four distinct lines of authority. (1) The purchaser of standing timber is granted a mere license to remove it within a reasonable time; (2) a grant of standing timber is a lease of the land for the purpose of timber operations, in which the period of removal is limited to a reasonable time; (3) a deed of timber is a conveyance of real estate, and as such, vests in the grantee absolute title to the trees as a part of the estate; (4)' a grant of timber is a defeasible fee, and unless the grantee removes the timber within a reasonable
As above intimated, we think the fourth class of cases as analyzed by Judge Ritz announces the better doctrine. See also King v. Merriman, 38 Minn. 47, 35 N. W. 570; Lockersham v. Miller, 16 Ky. L. Rep. 55; McComber v. Detroit L. & N. Co., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102; Johnson v. Powhatan Mining Co., supra.
Applying this doctrine, Vencill and Guinn are vested with defeasible, title to the timber on that portion of the 408 acre tract which may be set off and partitioned to plaintiffs, conditioned upon its removal within a reasonable time after that date. A reasonable time for removal of timber conveyed by deed with no time designated for removal depends upon the facts and circumstances of each case requiring its application. It is a mixed question of law and fact. Florence P. & G. Co. v. Newsome, 106 S. E. 619; Patterson v. Graham, 164 Pa. 234; Western L. & C. Co. v. Copper River Land Co., 138 Wis. 404; Beattie v. Smith, 146 Ark. 532. If defendants did not own an undivided one-third interest in the land, we would hold that their reasonable time had expired. But considering that they are tenants in common with plaintiffs, with all the rights and powers incident to that relation, we hold that their title to the timber has not been lost under the circumstances detailed. The reasonable time does not begin to run until after a division of the land. Forfeitures are not favored by equity. They are heavy and harsh and will not be declared or enforced unless justice clearly demands it. Pyle v. Henderson, 65 W. Va. 39; Newton v. Kemper, 66 W. Va. 130.
Upon what theory the decree declared the contract between Hill and Abraham Frank, of the one part, and McWhorter and Carney, of the other part, as fraudulent, we fail to perceive. There is not one particle of fraud in its procurement. It is a cloud upon the title of Vencill and Guinn to the timber and should be annulled only in so far as it is a cloud thereon.
Modified and affirmed.