Smith v. Wells, 250 Mass. 151

250 Mass. 151 | Mass. | 1924

Pierce, J.

This is a bill in equity to restrain the defendant from trespassing on the plaintiff’s premises and to recover damages already caused by such alleged trespass. After the fifing of the answer, the case was referred to a master “ to hear the parties and their evidence, and report his findings to the court together with such facts and questions of law as either party may request.”

In substance, the master found that the plaintiff is and has been for many years the owner of several tracts of land in Hawley and in Ashfield which are described in the plaintiff’s bill; that on May 28, 1918, by warranty deed he conveyed to the defendant “ All the standing timber including all trees fit for saw logs ” on “ The land . . . conveyed to me by Jennie M. Smith . . . Said Wells, (the defendant) is to have six years from this date to cut and remove said timber. He is to have the privilege of setting a steam mill and sticking up lumber on any part of said premises except mowing land at any time during said six years ”; that the defendant entered upon the land, upon which it is estimated that there was something like three million feet of standing timber and began lumbering operations; that the six years under the deed, during which the defendant might enter and cut and remove lumber, expired at midnight on May 28, 1924; that the defendant cut trees prior to May 28, 1924, “ some of which were limbed and some of which were not limbed out, which would make one hundred and fifty thousand feet of lumber; that these trees were worth as they lay upon the ground, $10 per thousand feet; that it cost $3 per thousand to cut them; . . . that the purpose of the defendant in cutting these trees was to cut down all the trees he could before the time expired, with a view to getting them off the premises after the time expired ”; that at the expiration of the time set in the deed the defendant had two hundred thousand feet of lumber on the premises which were severed from the realty and sawed out, valued at $4,000; that he had one hundred thousand feet cut from the stump and piled, not sawed, worth $2,000; that he had one hundred and fifty thousand feet of logs cut from the stump and scattered, not piled, worth $1,500; and that he had a portable sawmill and certain tools used in the lumbering trade which have remained upon the premises. The plaintiff does not contend that he is entitled to the sawmill and tools, nor object to their removal by the defendant.

After May 28, 1924, the defendant entered the premises for the purpose of yarding and sawing logs and removing lumber therefrom and continued so to do until he was stopped by an injunction of the Superior Court on June 4,1924. The defendant claimed and offered evidence tending to support his claim that the plaintiff at a time before May 28, 1924, “ gave him oral permission or license to continue to saw out and remove timber after the expiration of the time limited in the deed.” In this regard the master specifically found that “ Neither the defendant, nor the witnesses called by him, testify that the plaintiff said to the defendant, in clear and unqualified terms that he might continue to remove timber. They say, at most, in substance, at a conversation which took place in November, 1923, at the house of Oscar Rood, where . . . the defendant boarded, at the dinner table, in reply to an inquiry by the defendant as to whether the plaintiff had any objection to the defendant removing lumber that should be cut at the expiration of the time limit in the deed the plaintiff replied, ‘ I don’t know as I have any objection. ’ But, he added, ‘ You had better see the Federal Land Bank,’ and on another occasion, ' I have no objection, but I don’t think the bank will stand for it.’ And again, upon the afternoon of May 27 or the morning of May 28, when the plaintiff brought the defendant a notice from the Federal Land Bank of Springfield forbidding any. further operations upon the premises, the defendant said 11 shall go right on just the same.’ ‘ Will it hurt you (meaning the plaintiff) any? ’ to which he says the plaintiff replied, ‘ I don’t know as it will.’ ” The plaintiff specifically denied any such conversations or that he gave the defendant any permission, but the master found that conversations took place substantially as above stated.

The master ruled rightly that the burden of proof was on the defendant to show that he had a license; and, justified by the evidence above reported in full, properly found as a fact “ that the plaintiff gave the defendant no permission or license to continue, and that he did not mislead him to his damage.” By reason of this finding of fact it becomes unnecessary to decide whether an oral license given under the circumstances of this case is revocable or irrevocable, as the plaintiff and defendant respectively contend. See Fletcher v. Livingston, 153 Mass. 388.

It is the law of this Commonwealth, and the majority rule of this country, that a deed of standing wood and timber upon described premises with a provision which specifies a time within which the wood or timber shall be cut and removed conveys a title to the wood or timber which is conditional and determinable on the removal of the wood or timber within the time stated, with a reverter of title to the grantor in case the wood or timber be not so removed. Lawrence v. Gifford, 17 Pick. 366. Kemble v. Dresser, 1 Met. 271. Reed v. Merrifield, 10 Met. 155. White v. Foster, 102 Mass. 375. Perkins v. Stockwell, 131 Mass. 529. Oesting v. New Bedford, 210 Mass. 396, 400. Ball v. Streeter, 225 Mass. 100, 103. Smith v. Ramsey, 116 Va. 530; 15 Am. L. Rep. 32 note. No sound distinction can be made between sawed timber not removed within the time limit and timber cut to be sawed or otherwise manufactured which is not removed within such prescribed limit. The provision of the deed covers not only the cutting but the removal of that which may be cut in whatever shape it may be put by the grantee while it remains on the premises of the grantor described in the deed. The master makes no finding as to the quantity or value of the wood and timber removed by the defendant after the expiration of the time limit of removal.

It becomes unnecessary to consider the plaintiff’s exceptions to the master’s report; the defendant’s exceptions are not argued.

It results that the decree must be reversed, and a decree with costs entered for the plaintiff as prayed for in conformity to this opinion.

Ordered accordingly.