17 S.D. 247 | S.D. | 1903
This action was instituted to restrain the defendant from interfering with the plaintiff in cutting and removing timber from a certain quarter section of land in Meade county, and to recover damages for timber taken therefrom by the defendant. Defendant denied the plaintiff’s right to the timber, and sought, by way of counterclaim, to recover for tim
The substance of the pleading may be stated thus: Plaintiff alleges that on July 20, 1898, it purchased of one George Steward, who was then the owner and in possession of the land described in the complaint, all the standing timber thereon of certain dimensions, for which it paid $175, receiving from Steward a bill of sale, which was recorded July 26, 1898; that on October 22, 1898, it purchased all of the standing timber not included in the first purchase of Steward, who still owned and was in possession of the land, and who gave the plaintiff the right to remove the same, the second sale being evidenced by an instrument in writing, which was recorded September 18, 1898; that on September 30, 1898, the defendant purchased the land, with actual notice of the plaintiff’s right to the timber thereon; that since such purchase the defendant has refused to allow the plaintiff to enter upon the premises for the purpose of removing its timber, and has converted to his own use a part of the timber which the plaintiff had severed from the land of the value of $500; that he threatens, and will if not restrained by the court, convert the remaining timber to his own use, to the plaintiff’s irreparable injury; and that defendant is insolvent. Defendant denies all the allegations of the complaint; alleges that the land was occupied as a homestead, and that Steward’s wife did not sign either of the bills of sale; and by way oi counterclaim alleges the transfer of
It was stipulated on the trial that the land described in the complaint, consisting of one quarter section, was, from a time prior to the first purchase of timber by the plaintiff until the purchase of the land by the defendant, the homestead of Steward and family, who occupied the same as such, the value of which was less than $5,000. Having introduced evidence tending to prove that the defendant had actual notice of the plaintiff’s claim to the timber before he purchased the land, and that the consideration agreed upon for the timber was paid to Steward and his wife, the plaintiff offered in evidence the following written instruments, signed by Steward and the plaintiff:
“This agreement, made and entered into this 20th day of July, A. D. 1898, by and between George A. Steward of Meade county, South Dakota, party of the first part; and the Price & Baker Company, a corporation of South Dakota, doing business at Blackhawk, in Meade county, South Dakota, party of the second part, witnesseth: That for and in consideration of the sum of $175, lawful money of the United States, to be paid in the following manner, to-wit: $148.77 cash at the time of the execution of this agreement, and the balance of $26.23, four months after the date hereof, without interest, the receipt of said first $148.77 whereof is hereby acknowledged at the time of the execution of this agreement by the first party, said George A. Steward, party of the first part hereby sells, conveys, transfers and delivers to said second party, said Price & Baker Company, all the standing and growing timber of twelve
“This agreement, made this 22nd day of October, 1898, by and between George A. Steward of Meade county, South Dakota, party of the first part, and the Price & Baker Company, a corporation, of South Dakota, doing business at Blackhawk in Meade county, South Dakota, party of the second part, witnesseth: For and in consideration of the sum of $35 to me in hand paid, the receipt whereof is hereby acknowledged, said George A. Steward, party of the first part, hereby sells, conveys, transfers and delivers to said second party, said Price & Baker Company, all the standing and growing timber of whatever nature, size and dimension not now conveyed by bill of sale dated 20th day of July, 1898, and recorded on the 26th day of July, 1898, in Reg. of Deeds office of Meade county, located on the S. E. quarter of section 4, T. 2, R. 6 E., B. H. M., S. D., and said second party to have all right of removal as specified for in article of agreement of July 20, 1898. ”
To this offer the defendant objected on the grounds: (1)
This ruling was, we think erroneous. While not sufficient, without the wife’s signature, to convey any interest in the realty, it being a homestead, and not entitled to be recorded because not acknowledged, the instruments were, nevertheless, competent evidence to prove a license to enter upon the premises for the purpose of cutting and removing timber. A license, in the law of real property, is an authority to do an act or a series of acts upon the land of the person granting the license, without, however, conferring on the licensee any estate in the •land. It does not create an easement, nor give rise to an interest in land, and hence it is not within the statute of frauds, and need not be in writing, although it may be in writing and under seal.' The form of the authority, however, does not affect its nature, and a written license, even though under seal, has only the same effect as an oral license. 18 Am. & Eng. Ency. of Law, 1127 et seq. As no writing was required to clothe the plaintiff with authority to enter the premises for the purpose of cutting and removing timber, the absence of the wife’s signature and certificates of acknowledgment did not deprive the instruments of their value as evidence of such authority, and they should have been received in evidence.
To what extent the husband can make leases and grant licenses affecting the homestead without the wife’s consent is a question concerning which the ■ authorities are conflicting, and one which need not be determined, as the testimony shows
The plaintiff offered to prove by witnesses present at the trial “that prior to the 30th day of September, 1899, large amounts of wood and logs had been cut by the plaintiff, and were there on the land, and have since been removed by the defendant, and appropriated to his own use, and the value thereof.” The offer was rejected. This ruling involves the effect of the conveyance from Steward to the defendant, and while the authorities are perhaps not entirely harmonious in respect to the revocation of a license coupled with a consideration, we deem the correct rule to be that, as a license is terminated by any act of the licensor which shows an intention to revoke it, a conveyance by the licensor of some interest in the land inconsistent with the continued enjoyment of the license operates as a revocation, even if the license was granted upon a consideration. 18 Am. and Eng. Ency. of Law, 1141; Drake v. Wells, 11 Allen, 141; Bruley v Garvin (Wis.) 81 N. W. 1038, 48 L. R. A. 839; Thoemke v. Fiedler, 91 Wis. 386, 64 N. W. 1030; N. P. Railroad v. Paine, 119 U S. 561, 7 Sup. Ct. 323, 30 L. Ed. 513. In Thoemke v Fiedler, supra, the court says: “An easement is a permanent interest in the lands of another, with a right to enjoy it fully and without obstruction. Such an interest cannot be created by parol. It can be created only by a deed in writing or by prescription. But this agree ment did have the effect of a parol license. A license creates no estate in lands. It is a bare authority to do a certain act or series of acts upon the lands of another. It is a personal right, and is not assignable. It is gone if the owner of the land who gives the license transfers his title to another, or if
Applying these principles to the facts which we are bound to assume would have been proven had the circuit court ruled correctly on the introduction of evidence, we conclude that the plaintiff’s right to cut timber on the land in question was terminated by its transfer; that the plaintiff owned and had a right to remove any timber which it had previously severed from the soil; and that, though not entitled to the injunction sought, it was entitled to recover the value of any timber taken by the defendant which it had severed from the land before the land was sold, the defendant, of course, being entitled to recover on his counterclaim the value of any timber severed and removed by the plaintiff subsequent to the revocation of the license. As the plaintiff was not permitted to show that the