Appeal, No. 15 | Pa. | Oct 13, 1902
Opinion by
The question raised on this appeal, as stated by the appellants, is, what passed to them under the grant of “ all and all manner of timber down and standing save and except hemlock timber?
It is not needful that we trace from the Countess of Cumberland’s case (1609), Moore, K. B. 812, down through the succeeding English cases to our own time the well defined meaning of the generic term timber, as trees, felled or standing, to
The learned judge to whom the case was referred found that, at the dates of the deeds to the appellants, the minimum sizes for timber upon the lands were as follows : for cherry, ash and oak, eight inches in diameter at the top end of the butt log; for poplar, pine and basswood, birch and cucumber, ten inches in diameter at the top end of the butt log, and for maple, twelve inches in diameter at the top end of the butt log; and there was a finding that the appellants, by their instructions to their jobbers, and in their operations in cutting and removing the timber, recognized that only trees of the sizes named and over were suitable for timber and lumber purposes, and that the trees under the minimum sizes named were not suitable for such purposes. There was a further finding that the timber was cut according to these sizes by the appellants’ jobber, Joseph Haney, in obedience to instructions which they gave him.
At the time of the grants to the appellants, there were no. chemical factories in the county, and none were erected until 1894. Prior to that year no chemical wood had been sold or marketed from these lands, and no chemical or pulp wood was cut upon them at any time by the appellants until they had been cut over for timber purposes and the logs removed. In October, 1893, and annually thereafter, after the timber suitable for lumber had been cut and taken from the lands by the appellants for lumber purposes, they, by their jobbers, again went over the lands, cut the remaining trees and wood that were not suitable for lumber into pulp wood and chemical wood, and removed and sold the same. The grantees, having unmistakably indicated by their conduct in exercising their rights under the grants to them what they understood as having passed to them under “ all and all manner of timber,” cannot now be heard in