This is an action brought for an injunction against the cutting of timber on the land described in the pleadings, containing 375 acres and known as the "Smith tract." The question in the case for our consideration arises upon the construction of a contract between J. D. Barnes and James E. Ethridge, the plaintiffs having acquired the interest of Ethridge under the said contract by mesne conveyances or assignments, and the defendants having acquired the title and interests of J. D. Barnes by a deed to M. A. Smith, whose husband and codefendant, E. S. Smith, cut the timber by her permission and authority. The material part of the contract between Barnes and Ethridge is as follows:
"In consideration of the sum of $1,400 in cash, the receipt of which is hereby acknowledged, I have this day agreed to bargain and sell, and by these presents do bargain and sell, to James E. Ethridge, of Norfolk, Va., his heirs and assigns, with the privilege of moving, as hereinafter stated, at any time within four years from date, subject to the conditions hereinafter contained, all of the pine sawmill timber of the following dimensions: that is, 12 inches in diameter at the stamp at the time of removing, on that tract or parcel of land situated in the county of Harnett and the State of North Carolina, and bounded as follows: (Description here given.) The said James E. Ethridge, his heirs and assigns, shall have four years to cut, haul, and remove said timber from the land; and if longer time is desired to remove the timber, right is hereby granted, upon the payment of 8 per cent per annum on the purchase price (160) for the time it takes after the expiration of the four years herein granted, together with the rights and privileges, for and during the said period from this date, of his agents, heirs, or assigns to enter upon said land or any other land owned by him, and to pass and repass on the same at will, on foot or with teams and conveyances; to build lumber camps, stables, and other fixtures; to cut and remove the said timber, and to construct and operate any roads, tramroads, or railroads over and upon said lands as the said James E. Ethridge, his heirs or assigns, may deem necessary for cutting and removing said timber; and to use such trees, underwood, and brush on said land as may be needed in the construction and operation of said roads, tramways, and railroads; and to use and operate any railroad, tramways, or roads that the grantee herein, or his heirs, may construct or cause to be constructed, so long as they may desire, not exceeding two years, (with) the right to remove any *Page 117 and all fixtures, roads, railroads, and tramways or anything put up by said James E. Ethridge, his heirs or assigns, on said lands."
His Honor, Judge Jones, issued a restraining order to stop the cutting and removal of timber, and an order to show cause why the injunction should not be continued to the final hearing, at which time he refused to continue the injunction, and the plaintiffs appealed. After stating the case: It seems to us that the presiding judge correctly interpreted the agreement between Barnes and Ethridge. The parties evidently intended that Ethridge should begin the cutting and removal of the timber within the first four years, and the additional two years were granted, not as an original period for the cutting and removal, but for the purpose of enabling Ethridge to complete the cutting and removal commenced during the four years, provided it should be found that it was not sufficient time for cutting (161) and removing all the timber from the land which is described in the complaint. Surely it was not the intention of the parties that Ethridge should lie by and not cut a tree during the four years and then claim the right to cut and remove the timber during the two supplementary years. They were allowed, as we have said, for the purpose of completing the cutting and removal, and not as additional time to provide against the delay and laches of Ethridge in performing the work. The plaintiffs' construction of the contract is utterly inadmissible. Our opinion, therefore, is that Ethridge should have begun cutting and removing the timber within the four years, and if, in the exercise of reasonable diligence, he was not able to finish during said period, then it is provided that he shall have the additional time, not exceeding two years, to complete the work. It was admitted that Ethridge did not attempt to cut or remove a single tree during the four years first allotted to him. Would it not be a perversion of the terms of the contract to permit him to take advantage of his neglect and to use any part of the two years to cut and remove the timber, which were merely intended to supplement the four years to the extent that further time was needed to do what could not be done within that period? The stipulation is, not that if another full term is required to begin and finish the work, but if longer time is required for that purpose. This necessarily implies that at least some of the cutting and removing should be done during the first mentioned period. The plaintiffs cited in support of their position the cases of Hawkins v. LumberCo., 139 N.C. 160; Lumber Co. v. Corey, 140 N.C. 462; MiningCo. v. Cotton Mills, 143 N.C. 307; Woody v. Timber Co.,141 N.C. 471. Those cases are not in point. They relate altogether to a different *Page 118 question from the one presented in this case. Bunch v. Lumber Co.,134 N.C. 116, is also referred to in the plaintiffs' brief; but that case, as well as Hawkins v. Lumber Co., decides that the party who has (162) by a contract been given permission to cut and remove timber must proceed to do so with reasonable diligence, where no time is fixed. And so in this case it was not contemplated that Ethridge should waste the whole period of four years by idleness or inaction and claim the right to cut and remove the timber during the time limited for finishing the work. If we give such a meaning to the contract it will contravene the plainly expressed will of the parties, and it cannot be warranted by any recognized rule of construction. If we should so decide, both the spirit and the letter of the agreement would be violated. The law does not permit a party to sleep upon his rights. He must be diligent.
Lumber Co. v. Cedar Co., 142 N.C. 411, also cited, has no application to the facts stated in the record. That decision was based upon the statute which requires a bond to be given by the defendant in certain cases if an injunction is refused. But why do the vain thing of requiring a bond in this case, when it is apparent that the plaintiff must eventually fail in its suit?
The ruling of his Honor in refusing to continue the injunction to the final hearing, being right, is affirmed.
No error.
Cited: S. c., 150 N.C. 253.
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