It cannot be questioned that the doctrine of Zimmerman v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58, has long since become a rule of property. The statute abolishing the rule could not, as of course, affect property rights theretofore vested.
It follows then that the grantee of the timber or his successor is still the owner thereof.
By failure to remove the standing timber within the time granted, his property is occupying the lands of another. This, however, not by a trespass of the timber owner upon the land, but by virtue of a grant that still vests in him the ownership of the timber.
Having failed to remove it within the time stipulated, the privilege purchased and paid for, he should be required to compensate the owner for any further rights of way necessary to effect the use and enjoyment of his property.
Moreover, by nonremoval he has had the use of the soil to sustain and maybe contribute to the growth of his timber, a beneficial use of the land of another growing out of the status declared in the Daffin Case, supra. For this he should compensate the owner of the soil, and an equitable lien on the timber may be well recognized in favor of the owner for extended privilege of removal and the use of the soil after the time stipulated.
Inasmuch as no remedy at law is available to protect both parties in their rights, it seems to me to present a case for which courts of equity came into being. Such courts should have and do have, in my opinion, power to mold relief which will protect both.
Inasmuch as the owner of the land has granted and been paid for the timber, and it is still the property of the grantee, I cannot see the equity in allowing the grantor to destroy the property of another even in the use of his own.
Certainly it should not be permitted, in the absence of any necessity so to do, and in my judgment no such necessity should be forced on him by the refusal of the courts to remedy the situation.
I am of opinion either party should have a right to go into equity to effect a severance of the timber from the land, and a disposition of the proceeds as the equities shall appear. I see no good reason to wait until one party has invaded the rights of the other by making merchandise of his property, and then limit the relief to the proceeds of property thus wrongfully converted. To my mind the present ownership of the property with no right in any one to its use and enjoyment as a continuing status is the equivalent of the destruction of property rights.
"Every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law." (Italics supplied.) Constitution of Alabama, § 13.
Touching the suggestion of laches because of failure to remove during the long period stipulated in the timber deed and some five years thereafter, it must be said the grantee purchased and paid for the right to have the timber remain on the land for the full period. No legal remedy, it appears, has been open to the owner of the timber thereafter. An equitable remedy in my opinion exists and has existed alike in favor of both parties.
This is not intended to express approval of the Daffin Case as an original proposition, but to deal with the results of that rule in an equitable way. *Page 700
I concur in the opinion holding the bill has equity, but think it too limited.
SAYRE, J., concurs in the foregoing.