The construction of the contract between Thornton Chancellor and Sparkman Hardwood Lumber Company is the question presented in this case. That contract gave the lumber company and its assigns "the exclusive right for the period of ten years next ensuing to go upon said land and cut and remove therefrom such timber as the said second party or its assigns may desire."
The majority of this court has construed this clause of the contract as giving the appellee the growth of the timber from the date of the contract and the right to cut any of the growth without respect to size or character — in other words, it is permitted, if it sees fit, to entirely denude the land of all vegetation which might in the future develop into merchantable timber. The majority opinion cites no authority for the conclusion reached, learned counsel favors us with none, nor has my research discovered any. All the decisions which I have been able to find use the word "timber" in the sense defined by the lexicographers — i.e., trees which are suitable for being converted into lumber used in building and carpentry.
In the case of Broad River Lumber Co. v. Middleby, 194 F. 817, the Circuit Court of Appeals held as follows (quoting syllabus No. 1): "Generally, the word `timber' as used in a contract selling standing timber, unless modified or controlled by other expressions in the contract, means such trees as are fit to be used in buildings or similar construction; that is, trees of a size fit to be used in the construction of dwellings or ships; trees too small to be used for these purposes, not, strictly speaking, being considered as timber, although their products are suitable for the construction of interior work in dwellings, or for the manufacture of tools and other appliances."
It might be argued that the definition of "timber" has been broadened because trees are now used for the *Page 635 manufacture of useful articles other than lumber, since as paper and chemicals distilled from the wood fiber. It is a matter of common knowledge, however, that at the time of the execution of the contract in this case there were no plants for the manufacture of chemicals out of wood, or for the manufacture of small timber into paper, within this State. The contract, therefore, must be construed with reference to the uses to which trees were put at the time of the execution of such contract, which was only for the purpose of the manufacture of trees into lumber.
The recent case of Nettles v. Lichtman, decided by the Supreme Court of Alabama in January of this year and reported in 91 A.L.R., p. 1455, discusses a contract similar to the one involved in the case at bar and concludes, as does the great weight of authority, that a deed purporting to grant "trees and timber" is to be construed as conveying only such trees as are suitable for the manufacture of lumber to the exclusion of smaller trees usable only for making wood pulp.
The appellant has cited a great many cases to support his contention that the word "timber" as used in the contract must be construed as stealing trees suitable for manufacture into lumber. Among these is the Broad River Lumber Company case, cited supra; Neal Lbr. Mfg. Co. v. O'Neal, 166 S.E. 647; Anderson v. Palladine,257 P. 761; Roberts v. Gress, 67 S.E. 802; McRae v. Smith, 137 S.E. 390; Balderson v. Seeley, 160 Mich. 186, 19 Ann. Cas. 1049. The definition approved in these cases is that generally accepted by the text writers. 17 R.C.L., 1065-1094; 38 C.J., 143.
The generally accepted rule, and the one adopted by this court, is that only such trees as are timber at the date of the contract are included in the contract and intended to pass to the grantee, unless there are prospective, words indicating a contrary intention. Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S.W. 297.
The great preponderance of the evidence in this case is that trees were considered merchantable timber fit to be sawed into lumber which were, on the date of the contract, twelve inches in diameter, eighteen inches above *Page 636 the ground. There is some evidence to the effect that some trees smaller than that were cut by the Sparkman Hardwood Lumber Company, but it is evident, when the testimony is considered in its entirety, that these trees were cut by mistake and most of them were left in the woods. It is also true that a quantity of mulberry posts were cut and some cross-ties, but it is a matter of common knowledge that mulberry is a timber of scattered growth unfit for any use except for making fence posts and is never considered when estimating the value of land for its timber, and the cross-ties were evidently cut from small worthless trees to be used to lay the temporary lines of log roads across the tract of land.
The conclusion is inescapable, when all the evidence is considered, that the grantee construed the contract to mean that it was only entitled to cut the timber suitable for sawing into lumber at the date of the contract. As a basis for fixing the purchase price, it was estimated that the tract contained 13 1/2 million feet of lumber. The grantee cut and removed 25 million feet sawed from trees which with but rare exception were twelve inches in diameter at the stump, and then ceased its operations. If the contract were ambiguous, this conduct on the part of the grantee is amply sufficient to support the construction placed on the contract by the appellant. Robbins v. Kimball, 55 Ark. 414, 18 S.W. 457; Kahn v. Metz,88 Ark. 363, 114 S.W. 911; Lasater v. Western, etc.,177 Ark. 997, 8 S.W.2d 502; Natl. Eq. Life Ins. Co. v. Bourland, 179 Ark. 398, 16 S.W.2d 6.
It is clear therefore that the appellees had no right to cut any trees which were not at least eight inches in diameter on the 24th day of June, 1924, the date of the contract, and the appellants are entitled to the relief prayed.
For the reasons stated, I respectfully dissent and am authorized to say that Mr. Justice HUMPHREYS approves what has been hereinbefore stated, and joins with me in the dissent. *Page 637