Williams v. Jones

131 Wis. 361 | Wis. | 1907

Lead Opinion

Siebecker, J.

The rights of the parties to damages under the respective claims set forth in the pleadings depend upon their right to and interest in the timber involved. The controversy arises under the foregoing clause of the deed. The trial court held that Thomas Williams, the grantor in the deed, retained no interest in the timber embraced in this clause other than the right to cut and remove it during his life, and that whatever timber he did not so cut and remove belonged to the defendant, the grantee in the deed. This could only result from construing it to be in effect a reservation of the right to cut and remove the timber only during his lifetime. The appellants aver that the court erred in so construing it, and contend that this provision constitutes an exception to the conveyance of the forty acres embraced in the deed, and that the grantor retained the title to all the timber growing and standing on the south half of these premises.

The distinction between a reservation and an exception in a deed was observed and noted in tbe early case of Rich v. Zeilsdorff, 22 Wis. 544, and it was declared “that a reservation is always of something taken back out of that which is clearly granted; while an exception is some part of the estate not granted at all.” This case dealt with rights growing out of a provision of a deed respecting timber, and it was held that where “the timber is reserved, . . . the courts hold that this is strictly an exception, since it is part of the realty, or a part of the estate, and would have passed to the grantee but for the exception. The property in the timber continues in the grantor, with the right in so much of the soil as is necessary to sustain it.” Page 548. The language of the clause in this deed respecting the timber in question is the following: “Saving, excepting and reserving for himself, the grantor herein, all the timber now growing and standing on the south half of the said premises.” The words employed distinctly convey the idea that the right to all -the timber “growing and standing” on the land is retained by the grantor. The effect of this is that the title to the timber was retained by the grantor, and this operates to except it from the conveyance. The part of this clause wherein the grantor reserved “the right at all times to enter on said premises to cut and haul the said timber away during the next forty years, but the grantor herein agrees to cut and haul away each year what is necessary for him for firewood and other uses on the grantor’s farm in the town of Dodgeville,” shows that the parties contemplated a forty-year limitation for its removal, and that the grantor undertook to remove so much of it every year as he needed for his farming purposes. This condition in no way conflicts with the claim that the grantor did not part with the title to this timber, nor does it tend to show that he reserved merely the personal right to cut and remove timber within the period of forty years. The fact that grantor at the time of the conveyance was of the age of seventy-six years is persuasive that the parties did not contemplate that the forty-year limitation within which the timber was to be removed reserved no more than a personal right in the grantor to cut and remove the timber. The practical certainty that he would live but a small part of this period negatives the idea that he reserved no more than a personal right to cut and remove it, but indicates that he retained a title and interest in the timber which would go to his heirs at his death, and that they were limited to this period in which to remove it as their property. This construction of the clause gives full effect to every part of it, and, when applied to the facts and circumstances surrounding the parties when the transaction occurred, harmonizes the natural significance of the phraseology employed with what seems to have been contemplated by the parties. In the following cases in this court questions of a similar nature were, considered: Golden v. Glock, 57 Wis. 118, 15 N. W. 12; Pritchard v. Lewis, 125 Wis. 604, 104 N. W. 989; Strasson v. Montgomery, 32 Wis. 52. In other jurisdictions, see Whitaker v. Brown, 46 Pa. St. 197; Winthrop v. Fairbanks, 41 Me. 307; Sears v. Ackerman, 138 Cal. 583, 72 Pac. 171. Under this construction of the clause, the. growing timber on the premises at the time of grantor’s death was real estate owned by him, and he had an interest in so much of the soil as was necessary to sustain it. 28 Am. & Eng. Ency. of Law (2d ed.) 543; Strasson v. Montgomery, supra; Young v. Lego, 36 Wis. 394; Lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467.

The trial court seems to have given much weight to the conduct of the executrix of the will of Thomas Williams in not treating this timber as grantor’s property and in not converting it into money for distribution as directed by the will. We cannot perceive that so much weight should be given to the action of the executrix. The heirs seem to have consistently treated the timber as part of their father’s estate by entering on the premises and claiming it as their property and by removing part of it under such claim of ownership, and by all of them, except the heirs of Hugh Williams who appear as plaintiffs, deeding their interests to the plaintiff John T. Williams. We must regard such, conduct on the part of the heirs as an effectual election to treat this timber as real estate when it had not in fact been converted as directed in the will.

Erom these considerations it follows that Thomas Williams was the owner of the timber in question at the time of his death, that it constituted part of his estate, and title thereto passed to his heirs under the will. By their conduct they elected to hold it as real property without converting it as directed by the will. The defendant therefore wrongfully cut and removed some of the timber and plaintiffs are entitled to compensation therefor.

The judgment of the trial court awarding defendant damages and denying plaintiffs relief must he reversed, and the cause remanded with directions to grant judgment to plaintiffs for such sum as the court may find will compensate them for the timber which defendant wrongfully removed from the premises in question, and for costs.

By the Court. — So ordered.

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Dissenting Opinion

Timliu, T.

(dissenting). The court below considered the provision in question a reservation rather than an exception. Thereupon it became necessary to determine the duration of the estate or rights reserved. This presented a question'not of the mere omission of words of inheritance in the reservation, but also of the legal effect of the affirmative words employed therein. The whole property is first granted. Then, “saving, excepting and reserving for himself, the grantor herein, all the timber now growing and standing, . . . with the right at all times to enter on the said premises to cut and haul the said timber away during the next forty years, but the grantor herein agrees to cut and haul away each year what is necessary for him for firewood,” etc. I think this was a reservation within the rule of cases cited in the majority opinion. The words “exception” and “reservation” represent incompatible •ideas in the law, and if both terms be employed to describe the same thing one or the other must yield. The same thing cannot be at once an exception and a reservation. It seems to me that here both terms are employed to describe the same estate or right. No such estate or right in the timber as the grantor has by this provision existed prior to the conveyance in question. No such estate or right as the grantor by this provision has in the timber could therefore be created by mere exception from the grant. It is a new right, differing from his former estate or right not only in point of duration, but also with respect to his duty to cut and remove each year. Under the disposition of this case made by the majority, what has become of the right of the grantee to enforce annual removal? If this-is a reservation instead of an exception, and there is not only an absence of words of inheritance but words in the instrument as well as extrinsic facts tending to show that the reservation was personal to or during the life of the grantor, the court below was justified in holding that the rights therein reserved did not survive the grantor, and consequently the judgment below should be affirmed.

Cassoday, C. J., took no part.