96 P. 420 | Mont. | 1908
delivered the opinion of the-court.
This is an action to quiet title to certain lands in Missoula•county. The plaintiff alleges in his eomplaint that he is the-owner in fee of the lands described; that the defendant company-claims some interest in the same but that such claim is without, right. The prayer is that the defendant be required to set forth the nature of its claim, and that the same be adjudged null and void. The answer sets forth affirmatively that on December 28, 1901, the plaintiff and his wife, for a valuable consideration conveyed by deed to Edward Donlan all pine, fir, and tamarack timber over eight inches in diameter at the stump-then growing upon the land described in the plaintiff’s complaint, excepting a small grove of trees particularly mentioned. With the exception of two clauses hereinafter to be considered,, and others not material here, the deed is in the usual form of' bargain and sale deed. The answer further alleges that on January 18, 1902, Donlan and wife transferred the same interest acquired by the first deed to the Largey Lumber Company, and' that on December 24, 1902, the Largey Lumber Company conveyed the same interest to this defendant, the Missoula Lumber-Company, a corporation, and that ever since the last-mentioned date the defendant company has been the owner and’ entitled to the possession of the property described in the deed from plaintiff and wife to Donlan. The cause was-tried to the court sitting without a jury. Findings of fact and conclusions of law were made by the court, and a judgment or-decree entered in favor of the plaintiff, from which judgment and an order denying it a new trial the defendant appeals.
From the evidence given at the trial the court found “that a portion of the timber originally included and described in the-aforesaid conveyances still remains standing and growing om
Only one question is presented which requires attention, viz.: "What interest did the plaintiff and his wife convey to Donlan 'by the deed dated December 28, 1901 ? The appellant contends that there was an absolute grant of the timber and easement ■mentioned in the deed. On the other hand, the respondent contends that the deed only conveys such of the timber therein mentioned as should be cut or removed within the period of five years from December 28, 1901, and that the easement conveyed was limited in any event to the period of five years, subject to Tie terminated at any time within that period if the timber mentioned in the deed to be cut should all be cut within a shorter period of time than five years.
The clauses in the deed which give rise to this controversy are the following: “It is further understood and agreed that all .said timber shall be cut and removed within five years from the date of this instrument. * * * It is further agreed that whenever all of said timber shall be cut and removed, ■whether the five-year period has fully expired or not, that the party of the second part, his heirs and assigns, shall have no ■further easements or rights of way over and across the said premises or any part thereof.”
A determination of the question arising over the sale of the timber will determine the question arising with reference to the
But the question presented upon the construction of this deed is not a new one. It has been before the courts frequently, and from many decisions the general rule recognized appears to be as follows: “It is customary, where standing timber is sold without the land, to provide in the contract that the timber
A leading case upon the subject is McIntyre v. Barnard, 1 Sand. Ch. (N. Y.) 52. The deed in that ease was dated May 27, 1836, and conveyed all pine timber standing or being on the premises, “together with the right of entering upon the land until January 1, 1841, to cut and remove the said timber. ’ * Of this clause in the deed Assistant Vice-Chancellor Sanford said: “The conclusion most satisfactory to me is that the clause-in question was designed to limit the whole grant; and that theobjeet of the grant was the sale of all the pine logs which should be taken off by January, 1841, and nothing beyond that. * * * It is only by this construction that we can give full scope to the whole intention expressed by the instrument; and at the same time we relieve it from the irrational consequences to which the defendant’s construction inevitably leads. Two cases in Maine, the greatest lumber state in the Union, support this view of the instrument. In one of them, Pease v. Gibson, 6 Greenl. (Me.) 81, the contract was in this form: ‘I hereby agree to let J. H. have all the pine trees fit for mill logs on my land in Brownfield [describing it], said H. to have two years from date to take off said timber. I acknowledge $150 for the same.’ It was held to be a sale of only so much of the timber as the vendee might take off in the two years. The other case is Howard v. Lincoln, 13 Me. 122. There the plaintiff sold to one Smith ‘all the white pine and hard pine timber fit for board logs, etc., which are now standing, lying or being on, etc. [describing the land] the said Smith to have the term of three
A late case is Webber v. Proctor, above. The deed there construed conveyed all hemlock bark and one-half of the hemlock logs on one lot of land, together with “the right to enter upon said lot of land at any and all times -during the term of ten years, to cut any trees, and make necessary roads to remove said hemlock bark and hemlock trees or logs from the land, during the term aforesaid, without being liable for trespass,” also all hemlock bark on another lot of land “with the right to enter upon said land at any and all times during the term of five years from March 30, 1882, to cut any trees, and make necessary roads to remove said hemlock bark from the land, without being liable for trespass during term aforesaid.” Speaking of this deed, the supreme court said: “Such a construction as is contended for by the plaintiff, that it was an absolute sale of all the bark and one-half the logs upon the land, and not merely such as might be peeled, cut, and taken off within the periods mentioned, would be to disregard the true intent and meaning of the parties, as evidenced by the language of the deed. We do not think the plaintiff had any title or interest in the bark or logs which remained unappropriated after the respective limits of five and ten years. The plaintiff had been granted all the hemlock bark and one-half the hemlock logs on one lot, and all the hemlock bark on another. If this grant had stopped here, and these periods of time had not been inserted in the deed, there could be no question that, as incident to the grant there would have passed the right to enter and cut trees, and make roads necessary to remove the bark and logs. Why, then, were these clauses inserted, not only in reference to time, but also authorizing the grantee ‘to cut any trees and make necessary roads to remove said hemlock bark and hemlock trees or logs from the land during the term aforesaid, without being liable for trespass’? They were inserted for some purpose. The most satisfactory conclusion is that they
Construing a deed containing a similar clause,- the supreme-court of -Wisconsin, in Strasson v. Montgomery, 32 Wis. 52, said: “Whether the plaintiff was entitled to recover depends-upon the construction which is given to the conveyance of the-timber by Gleason to White, and the exception or reservation in the deed to the plaintiff. The former conveyance was of all the trees and timber on the premises, with the proviso that White should take the same off the land within four years or by December 4, 1870. It is well settled on principle and by authority that the legal effect of the instrument is that Gleason thereby conveyed to White all of the trees and timber on the premises which White should remove therefrom within the prescribed time, and that such as remained thereon after that time should belong to Gleason or to his grantee of the premises.”
In King v. Merriman, 38 Minn. 47, 35 N. W. 570, it is said: “Contracts relating to an interest in standing timber, with an express limitation as to the time of removal, are familiar to the American courts in the timbered states. The eases arising upon them are extensively collated in the exhaustive briefs of counsel, but are too numerous to be here considered in detail. Sometimes these contracts are in the form of conveyances of timber, sometimes of a sale, coupled with a license to enter, sometimes of a formal license to enter and cut, and, again, of a reservation of the timber by the grantor in the conveyance of the land. But, whatever the form, the limitation oas to the time of removal has been almost invariably held to be a limitation of the grant or reservation itself. The reasons are manifest. Any other construction would be against the expressed intention of the parties. Moreover, if the right of entry be not limited to the time fixed, it would be practically unlimited, which would amount
We are of the opinion that the trial court was correct in the conclusion of law stated above, and the judgment and order are affirmed.
Affirmed.