October 24, 1913. The opinion of the Court was delivered by acting Associate Justice in place of Mr.Justice Woods, disqualified. This case was commenced by the service of the summons and complaint on the 4th of April, 1913, and, as appears from the complaint, is for the purpose of determining who is the owner of the timber on the lands described in the complaint, and also for the purpose of securing an injunction restraining the defendant from cutting and removing the timber from the said lands, until the true owner of said timber can be determined on the trial of the case upon its merits.
The complaint alleges, in substance, that the plaintiff is the owner of the timber, and does not wish the defendant to cut and remove the same from the lands. *Page 65
The answer of the defendant alleges, in substance, that it is the owner of the timber, and wishes to cut and remove the same from the lands, and intends to do so, unless restrained by the Court. The defendant's claim, as appears from the record, is based on what is known as a "Timber Deed," or contract, dated December 16, 1898, made by C.C. Law, plaintiff's predecessor, in interest to R.L. Montague, and by sundry mesne conveyances, it is alleged, defendant acquired all the rights of Montague.
The "Timber Deed" does not fix the time as to when the party who has the right to do so, under the "Timber Deed," shall commence to cut and remove the timber.
The complaint alleges, the defendant began to do so on the 16th of March, 1912, over protest of, and notice from, the plaintiff not to cut and remove the timber, as it had not commenced to do so within a reasonable time from the date of the Montague "Timber Deed," which is alleged to be more than thirteen years.
The record shows, on application of plaintiff, Judge Shipp, on the 30th of March, 1912, granted a temporary injunction restraining defendant from cutting and removing the timber; that on the 25th of January, 1913, on motion of the defendant, Judge Spain passed an order dissolving the temporary injunction of Judge Shipp.
The appeal is from the order of Judge Spain, in so far as said order dissolved the injunction as to the timber on the Matheson tract of land, and also as to the timber on the Manning tract, on the east side of the road, it being conceded by plaintiff that the injunction as to the other land and the timber thereon, ought to have been dissolved. The appeal is based on nine exceptions, only two of which, — fifth and eighth, — will it be necessary to consider, as they, in substance, cover all the errors imputed to the Circuit Judge.
As to the fifth exception. Since the cases of Flagler v.The Lumber Corporation, 89 S.C. 328, and McClary v. A.C.L. Corporation, 90 S.C. 153, in which this Court laid *Page 66 down the doctrine of reasonable time in a "Timber Deed" similar to the one involved here, there cannot be any doubt as to the application of that doctrine to the case under consideration.
Did the defendant commence to cut and remove the timber within a reasonable time?
The complaint alleges it did not.
The answer of the defendant alleges that it did. This issue will have to be passed upon when the case is tried on its merits.
The plaintiff now claims to be the owner of the timber in question, and does not wish the defendant to cut and remove it.
The defendant claims to be the owner, and wishes to cut and remove the timber.
Under the above statement of facts as appears from the record, the Court would be safe in laying down, once for all, the following as a true and sound proposition, to wit: In a case where the title to standing or growing timber is the issue, and the allegations of the pleadings and the proof submitted at the hearing are such as necessitate a trial on the merits, in order to determine the ownership, either party applying therefor would be entitled to an injunction, restraining the other from cutting and removing the standing or growing timber, for the purpose of preserving same, until the true ownership can be determined by the proper judicial tribunal. This exception is, therefore, sustained.
As to the eighth exception:
The record shows, and about which there is no dispute, at the time of the conveyance from C.C. Law to Montague, there was a mortgage on the undivided five-eighths interest in the Manning tract of land. This mortgage was foreclosed, and the master, Lucas, conveyed the land to Annie Law Early, May 2, 1903.
By agreement, Annie Law Early, owner of the five-eights interest, in the Manning tract, and the defendant, owner of *Page 67 the Montague interest in the timber, the timber was divided between them by arbitration. Annie Law Early got the timber on the Manning tract on the west side of the road, and the defendant got the timber on the east side of the road. Thereafter, C.C. Law died, leaving a will, wherein he devised all of his property to his widow, Annie S. Law, now Annie Law Gresham, the plaintiff herein. Thereafter, on May 30, 1903, Annie S. Law conveyed all her interest in the Manning tract to Annie Law Early, the conveyance containing the following clause, to wit: "Saving and excepting from this conveyance, however, my right, title, and interest in that portion of said described land containing eighty-six and five-tenths (86.5) acres, as represented on a plat of J. M. Johnson, Jr., attached to deed to me from Annie L. Early of equal date herewith, and save and excepting also such timber on all of said land as has been heretofore conveyed to Atlantic Coast Lumber Corporation."
Under this conveyance the timber did not pass to Annie L. Early. It, therefore, belongs either to the plaintiff or to the defendant. The very issue raised by the pleadings is, who is the owner of the timber involved?
It was contended by defendant that the exception in the deed as above set out, was for the benefit of the defendant, and not the plaintiff, grantor, and had the effect of putting the title to the timber in the defendant.
This position or contention can not be sustained.
For "when timber itself is excepted in a conveyance, the timber remains the property of the grantor, with right in so much of the soil as is necessary to sustain it." Knotts v.Hydrick, 12 Rich. 314; Wait v. Baldwin, 1st Amr. St. Rep. 551; Steedman v. Weeks, 2d Strob. Eq. 145; Wilson v.Alderman, 80 S.C. 106; Rivers v. Lumber Corporation,81 S.C. 494.
Therefore, what has been said in reference to the fifth exception applies with equal force to the eighth exception, which is also sustained. *Page 68
For the reasons herein stated, it is the judgment of the Court that the order of the Circuit Judge in so far as it dissolved the injunction as to the timber on the Matheson tract of land, and also as to the timber on the Manning tract on the east side of the road, be, and the same is hereby, reversed.
Let the pleadings and exceptions be printed in the report of the case.