It is well settled by the decisions of this court that the deed, Exhibit A to the bill of complaint, and under which the complainant claims title to the timber, conveyed the absolute title to the timber which did not revert to the grantor and was not lost to the grantee by a failure to cut and remove same from the land within the period fixed by the deed. C. W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58; Mt. Vernon Lumber Co. v. Shepard et al., 180 Ala. 148, 60 So. 825; Vizard v. Robinson,181 Ala. 349, 61 So. 959; Wright v. Bentley Lumber Co. et al.,186 Ala. 616, 65 So. 353; West v. Maddox et al., 193 Ala. 612,69 So. 101. It must be borne in mind that this deed was made in 1902 and is not controlled by subsequent statutes as codified in the Code of 1923.
The deed, however, conveyed only the merchantable timber on the land at the date of its execution and did not include or extend to timber not then merchantable, but which may have become so in the future. Wright v. Bentley Lumber Co. et al.,186 Ala. 616, 65 So. 353. It is therefore incumbent upon the complainant, in order to establish ownership to the timber, to aver and prove that what is being removed and marketed was merchantable when the deed was made in 1902. The bill avers ownership, and, if defective for failing to charge that the timber was merchantable as of said date, there is no ground of demurrer as to this defect.
While this court has uniformly given these timber deeds the above-mentioned construction, it seems to have denied the owner of the timber any legal remedy thus far pursued to get the timber after the expiration of the time limit for cutting and removing same.
In the case of Long v. Nadawah Lumber Co., 202 Ala. 523,81 So. 25, the court held that the owner of the timber could not maintain trover against the owner of the land for converting the timber. The present writer did not agree to this, and I still think that, while the owner of the land had the right to clear the same and remove the timber therefrom, yet, if he disposed of it or converted it to any particular use, trover would lie in favor of the owner of the timber, but the majority of the court held otherwise, and the present bill removes all doubt, even if there be the existence of a legal remedy by charging the insolvency of the respondent.
In the case of Ward v. Moore, 180 Ala. 403, 61 So. 303, the court held that the owner of the timber could not maintain ejectment.
There is a broad statement in the case of Irwin v. Shoemaker,205 Ala. 13, 88 So. 129, that ejectment may be maintained to recover timber standing and growing upon the land, but, whether this statement was sound or not, the complainant in that case was the owner of the land and had the right to maintain ejectment against one who was in possession of same under a claim to own the timber, and such was the case quoted from. Bolland v. O'Neal, 81 Minn. 15, 83 N.W. 471, 83 Am. St. Rep. 362. The case of Christopher v. Curtis-Attalla Co., 175 Ala. 484,57 So. 837, was an action of ejectment, but this particular question seems not to have been considered or decided, but it merely cites the case of Heflin v. Bingham,56 Ala. 566, 28 Am. Rep. 776. In this Bingham Case, supra, the action of ejectment was by the owner of the land against one in possession under a timber claim, just as the Minnesota case, supra. At any rate, this identical question was decided in the case of Ward v. Moore, supra.
As we understand, the owner of the land is under no duty to bear the burden of *Page 699 the timber after the vendee's time for removing same has expired, and should be permitted to clear his land by cutting the timber and getting it out of the way, but the bill avers that this is not being done for the purpose of cultivating or utilizing the land, but for marketing and selling the timber. We do not understand that the relationship between these parties is such that would invoke the rule against an equitable waste, as the owner of the land expressly limited the vendee's right to come upon his land and remove the timber, and it would be inequitable and unjust to hold that he must be deprived of the use and benefit of his land for the purpose of growing and preserving the timber of another which should have been removed within the time limit. On the other hand, it would be equally as unjust and inequitable to permit the owner of the land to convert to his own use the property of another or to so destroy the timber of the complainant which is not essential to the legitimate exercise of the right to enjoy the use of the land. Lyon v. Hunt, 11 Ala. 295, 46 Am. Dec. 216.
We think the bill contains equity as to injunctive relief against the converting of the timber into lumber and the disposing of same, and, if there is an appreciable amount of lumber in the hands of the respondent, the trial court could well appoint a receiver to take charge of and dispose of same and appropriate the proceeds between the parties according to equity and good conscience.
The trial court erred in sustaining the demurrer to the bill of complaint, and its decree is reversed, and one is here rendered overruling same, and the cause is remanded.
Reversed, rendered, and remanded.
SAYRE, BOULDIN, and FOSTER, JJ., concur.