The dissenting opinion filed on August 15, 1941, with the original majority opinion, is amended, and the following opinion is substituted therefor:
I cannot agree with the construction by the Chief Justice of the timber deed involved in this action, for I cannot escape the conclusion that it was the intention of the parties to the deed that all was conveyed which should come within the description, "timber," at the time of cutting and removal.
The situation resulting from the proposed construction is, I think, an impossible one. The evidence taken in the trial of this case establishes the impossibility of now determining with even substantial accuracy what was "timber" on the property in 1903. I am not unmindful that this Court said in its decision in 1908 of the case of Wilson Lumber Co. v.D.W. Alderman Sons Co., 80 S.C. 106; 61 S.E., 217,218; 128 Am. St. Rep., 865, that it would be then difficult to determine what trees were suitable for milling in 1893, "but such inconvenience and difficulty is no ground for disregarding the express terms of the deed, which the Court must construe as the parties have made it." The Court had recently before held in Crawford v. Atlantic Coast LumberCompany, 79 S.C. 166; 60 S.E., 445, 447, that because a construction would lead to inconvenience cannot avail as an argument, and said: "The parties saw fit to make their contract, and they cannot now be heard to complain that it is not a proper one."
These two decisions seem to closer touch the present problem than any others in our reports. Neither, I think, is controlling of this case for they are distinguishable from it. In the last mentioned, the Crawford case, the conveyance *Page 137 was of the trees "measuring nine inches in diameter, * * * now being on" the land. These words tied the description of the timber conveyed to the present, or time of conveyance, and are not found in the deed now before us. The time provided for cutting and removal, if any was specified, does not appear. In Wilson Lumber Company v. D.W. Alderman Sons Co. the purchase was of the "timber suitable for milling purposes on" the tract of land, without specifying the time for removal.
Here we have the broad description, "all the timber of every kind and description, both standing and fallen, on" the land, and the following: "That the grantees, their heirs or assigns, shall have, and the same is hereby granted to them, the period of forty (40) years, beginning from the date hereof, in which to cut and remove the said timber from the said land, and that in case the said timber is not cut and removed before the expiration of said period, that the said grantees, their heirs and assigns, shall have such additional time therefor as he may desire, but in the last mentioned event, the said grantees, their heirs or assigns, shall, during the extended period, pay interest on the original purchase price above mentioned, year by year, in advance, at the rate of Six (6%) per cent per annum."
I am also mindful that the Court has said that usually where it is the intention of the parties that all timber which during the period for removal attains the specified dimensions (here comes within the meaning of the word "timber") shall be conveyed, such phrases as "at the time of cutting" or "at the time of severance" are used; but this statement was made in the opinion in Crawford v. AtlanticCoast Lumber Company, supra, where the conveyance was, as pointed out above, expressly of trees of certain dimensions then being on the land, and there was no forty-year period of removal specified; furthermore, the Court did not undertake to lay down a requirement of the inclusion of one of the quoted phrases or its equivalent. I take it that when *Page 138 there is such inclusion, there is no doubt. Here, where there is no such phrase, the construction is more difficult.
Moreover, there has been no other holding and therefore no holding by this Court of which I know that the indicated words or their equivalent must be used in a deed in order to effectuate the otherwise indicated intention. The problem of this Court is to ascertain from the deed and its terms and provisions the intention of the parties and apply that intention to the decision of this case. Authority need not be cited that construction is the ascertainment of the intention.Crawford v. Atlantic Coast Lumber Company, supra.
The deed in the last-mentioned case, as has been pointed out, contained a definite description by diameter dimension of the timber conveyed while in the deed before us there is none. The Court Cited for its decision there the case ofWarren v. Short, 1896, 199 N.C. 39; 25 S.E., 704. Reference to that case also reveals a deed which conveyed the timber "12 or more inches in diameter at the stump, growing on" the tract of land.
Reference has been made to the practical impossibility in this case of now ascertaining what was standing or fallen timber on the premises in 1903, the time of the making of the deed, and to the testimony thereupon. A forest engineer (a profession which I venture to say was unheard of by the parties to the deed in 1903) testified for the defendants that in 1939, he made an examination of the premises and a growth study of the trees that had been cut and that approximately ten to twenty thousand feet and six hundred and eighty-five poles had been removed that were not on the property in 1903, but on cross examination he said that no rings showed in a pine tree during the first three years of its growth and that he could not swear upon the subject and had, in fact, made a report of his investigation which indicated that the timber to which he referred was at the time of the deed "in the seedling stage." On the other hand, R.O. Rudd, thirty-nine years old, testified that some of the trees were cut from land which was planted in 1910, *Page 139 and was what is known as "old field" pine; and another witness for the defendants testified to the same effect.
I do not think that it can be reasonably said that the parties to the deed contemplated that there would have to be an expert (but inconclusive) inquiry at the time of the cutting and removal of the timber at any time within the period of forty years which they specified, in order to ascertain even approximately what the purchasers were authorized under the deed to cut and remove. If that was not their intention then such was, as I have suggested, that the purchasers should cut and remove such as was "timber" at the time of cutting and removal. Why else would so long a period as forty years be provided? There is nothing to show that the transaction was oppressive upon the landowner at the time the deed was made. It was estimated in the deed that the timbered acreage was three hundred and fifty-eight and the stated consideration was one thousand dollars, the value of which would be multiplied if interest were compounded thereon for the period provided in the deed. The growth of the fund constituting the consideration would be at least comparable to the growth of the timber.
The uncertain opinion of the experts who testified upon the trial of this case was founded upon his examination and study of the stumps of trees which had been cut, while to enforce the views of the appellants would require the ascertainment as to each tree before cutting that it was "timber" in 1903. Consideration of the problem is convincing that it is impracticable of solution and demonstrates that such was not within the contemplation of the parties to the deed, nor intended by them. The language of the Supreme Court of Appeals of Virginia in Craddock Mfg. Co. v. Faison,138 Va., 665, 123 S.E., 535, 537, 39 A.L.R., 1309, is impressive. The Court was discussing the contention that the diameter measurement of standing timber sold must be taken inside the bark, and said: "It is also erroneous because impracticable. To measure a standing tree from `inside bark to inside bark' would necessitate either removing *Page 140 the bark at the specific height, and thus take the risk of being mulcted in damages for killing or injuring the tree, or else by arriving at the diameter or circumference of the tree by means of an estimated thickness of the bark, which is an unfair method because the bark of different species of trees varies as to thickness." Here it would be necessary according to the testimony of the expert, to count the "rings" of each tree (as he could upon the stumps) and then estimate and add the number and growth of the first years of life when no rings were formed.
The immediate question here involved was not decided inFurman v. A.C. Tuxbury Land Timber Co., 112 S.C. 71,99 S.E., 111, or Broad River Lumber Company v. Midleby, 4 Cir., 194 F., 817. There was a Federal case later than the latter, Colleton Mercantile Mfg. Co. v. Gruber, D.C., 7 F.2d 689, 695, in the Eastern District of this State, wherein the excellent opinion by the late Judge Ernest F. Cochran contains a valuable review of the authorities. The contention was made by the defendants, as here, that future timber growth was not included in the conveyance. The learned Judge concluded that there was no authoritative decision directly in point and that the case would have to be decided upon general principles, which were adverted to at greater length than here attempted. He concluded that the words in the description in the grant, "All * * * timber now standing, or which may be standing * * * during the term hereinafter named," were conclusive of the intention of the parties. I think the same intention is to be gathered from the careful consideration of the deed before us without the quoted words contained in the deed in theColleton case and also without the words "now" in theCrawford case and in the Wilson case, "suitable for milling purposes," and the latter without specified time for removal.
In reading the authorities I have found it occasionally carelessly said, without analysis of the cases, that the majority rule is that contended for by appellants, that a conveyance *Page 141 of timber is of timber then upon the land, and of such claimed majority are the Georgia cases cited in the opinion of the Chief Justice.
However, study of the texts shows that they do not state the rule so as to include this timber deed which contains no description by dimensions, no words denoting an intention contemplating only the timber existing at the date of the conveyance and no designated special purpose for which the timber would be used.
Ruling Case Law, volume 17; at page 1094, says: "It is generally held that a provision as to the size or suitability of the timber refers to the time when the contract or grant was made in the absence of anything to show a contrary intent," citing our case of Wilson Lumber Co. v. D.W.Alderman Sons Co., supra. In 38 C.J., 161, 162, is the following, also citing in the footnote our Wilson-Alderman decision: "While there are decisions to the contrary, the general rule is that where standing timber of designated dimensions or to be used for designated purposes is sold, only such timber is conveyed as measures up to such dimensions or is suitable for the purpose specified at the date of the deed or contract of sale, and does not include timber which may become so subsequently by growth, or by changed conditions in the lumber market, or by change in custom, unless, as is sometimes the case, the instrument itself expresses a different intention."
The more recent text in 34 Am. Jur., pages 503, 504, contains the following: "The timber passing under a sale or grant is, of course, determined by the intention of the parties to the contract or conveyance as manifested by the terms or expressions therein descriptive of the property. A contract not mentioning the dimensions of the timber sold or reciting that such timber is then standing on the land, but giving the purchaser a right to cut any timber it may desire, has been construed as permitting the purchaser to have all the timber it may desire at any time during the life of the contract." This text cites Wilson Lumber Co. v. *Page 142 D.W. Alderman Sons Co. for the identical statement quoted above from R.C.L., not applicable here, I think.
Examination of the cases cited to support the supposed majority rule (see some of them in note, 55 L.R.A., 524) discloses that many of them contain descriptive or otherwise restrictive words such as our Crawford and Wilson cases,supra, indicating an intention to limit the conveyance to the timber coming within the description or restriction at the time of the deed. None such appear in the instant deed, although it will not be gainsaid that they could have been easily inserted had they been expressive of the intention of the parties.
Turning to the Georgia cases, it will be found that inVandiver v. Byrd-Matthews Lumber Company, 146 Ga. 113,90 S.E., 960, the conveyance was of "all the timber of whatever kind and description now growing or being upon" the land. In McRae v. Smith, 164 Ga. 23,137 S.E., 390, the question was whether a purchaser or his assignee who had already cut the timber large enough for ordinary purposes could return years later within the term and cut the smaller trees for cooperage, barrel stave material. It will thus be seen that neither of these cases is really applicable here. The Georgia Court concludes its opinion inNeal Lumber Manufacturing Co. v. O'Neal, 175 Ga. 883,166 S.E., 647, 651, in part as follows: "We are aware that our construction of the lease in question may not be in accord with the views expressed by some other Courts in like cases, but it is in harmony with previous adjudications by this Court and with the weight of authority. See 28 Am. Eng. Enc. Law, 542 (5), 38 C.J., 161, § 37 (b), and citations." But the citation from Corpus Juris does not sustain the contention of the appellants in this case as will be seen by reference to the quotation of it above, and the other citation of the Court, 28 Am. Eng. Enc. Law, 542 (5), as follows, is equally unavailing: "Sale by dimensions — As of What Time, — in a sale of standing trees of a certain size it has been held on the one hand that the question of size *Page 143 should be determined when the tree was reached, without regard to the growth between the time of making the contract and the time of cutting; on the other, that the dimensions given referred to the date when the conveyance was executed."
American Jurisprudence cites in support of its above quoted text the case of McMillan v. Gurdon Lumber Company,189 Ark. 628, 74 S.W.2d 631, 632,75 S.W.2d 229. That case is also reported in 94 A.L.R., 1414, and is made the subject of an annotation commencing at page 1420. The deed there provided ten years to cut and remove instead of forty years, as here, and the grantee's right to cut and remove was of such timber as it might desire. It seems to me that such words would add nothing to the grant here of all timber. The Court there held that the purchaser was not limited to "timber" on the land at the time of his conveyance because the deed or contract "does not mention the dimensions of the timber sold and does not in express terms provide that the timber sold is that now standing on the land."
In the annotation referred to occurs the following: "The fact that there was no practical way to ascertain the growth of a given tree between the time of the contract and the time it might be cut thereunder was noted in Bryant v. Bates, 1897, 39 S.W. 428, 19 Ky. Law Rep., 191, as ground for holding a purchaser of saw-log timber, consisting of trees of certain diameter and up at the stump, entitled to remove all trees reaching that diameter at any time during the three years in which it might be cut and removed."
In the Virginia case of Adams v. Hazen, 1918,123 Va., 304, 96 S.E., 741, at page 746, it was said by the Court: "We are of opinion that in the instant case, in which the contract does not limit the purpose for which the timber was bought, beyond the stipulation that it must be `merchantable,' `all merchantable timber,' as those words are used in the contract under consideration, is all timber, whatever its size, that had at the date of the contract, or may have during the *Page 144 life of the contract, a commercial value in that locality, for the purpose of manufacture into lumber, or for any other purpose."
I agree that the trial Judge erred when he held that the timber deed included "sprouts and brushes" and that such were thereby conveyed, but it was harmless error, for the defendants made no effort to prove that such trees as were cut by the plaintiff did not come within the description of the deed, were not "timber," at the time of cutting. Their testimony, hereinabove referred to, seems to have been aimed at establishing that some of the trees cut were not "timber" at the time of the conveyance and that some even grew thereafter in "old fields."
My conclusion is, as indicated, that the deed vested in the grantees and their assigns the right to cut and remove all trees that at the time of cutting within the period granted, forty years, came within the description of "timber," used in the deed. Under the testimony this would dispose of appellants' counterclaim adversely to them.
It should be added that the testimony shows that the parties in interest were in accord with this construction, it was their construction, until this action was brought as the result of a boundary dispute. The present owner of the land did not testify, but her husband did and he seems to have acted for her in all matters relating to the deed and to their removal of the timber on the disputed area which resulted in this suit.
He testified on cross examination that in 1932, a former owner of the timber under the deed in question cut a "good bit" of the timber in a salvage operation after a fire, without protest from him or his wife; likewise that there was no dispute or protest concerning the cutting by the respondent in 1937 and 1938 of the pine on the hill, and that respondent also at that time cut some timber in the swamp. He also testified that he had cut some small timber on the property with the permission of respondent's foreman, which he sought. He further said that he had only recently found *Page 145 the old plat, which differed from the plat recorded with the deed, and that with it to "back him up" he was making the contest; he answered a question of the presiding Judge that he claimed the timber because respondent had cut and left it and that was the only reason he claimed it, that under the deed respondent had only 358 acres which it had already cut.
The conduct mentioned was an acquiescence in what I think was the proper construction of the deed, adopted by the owners of the timber, and a waiver of the construction now asserted by Grooms and his wife by way of counterclaim when brought into Court to defend an action for trespass.Cunningham v. Atlantic Coast Lumber Corporation,117 S.C. 240, 109 S.E., 145. "A practical construction put on a contract by a party thereto may be conclusive against him on the question of what timber was actually sold." 38 C.J., 157.
I think the Circuit Judge was correct in refusing to submit to the jury the issues of abandonment and estoppel. I do not think that the evidence was susceptible of a reasonable finding of either, but no useful purpose would be served by here attempting to review it. It should be noted that the defendant logger, the witness, Dangerfield, testified that he did not know that he was cutting on plaintiff's timber land, he thought it was other, adjoining land of Grooms which was not included in the timber deed; and I do not think that it can be reasonably inferred from the testimony that respondent or its agents knew it until immediately before this action was brought.
The opinion of the majority, and therefore the judgment of this Court, leaves open the question of whether the evidence of estoppel was sufficient for submission to the jury, but holds that the testimony concerning the alleged abandonment by the respondent of the timber in Four Holes Swamp (the casus belli) sufficed for the submission of that issue. With the latter I cannot agree after careful study of the record; I do not think that the cessation of cutting after removal of the timber from the upland and branch flats is *Page 146 evidence of intention to abandon the swamp timber, evidently valuable, years within the contract period.
Similarly I do not think that the failure of respondent to return the timber for taxation in 1938 constitutes evidence of its abandonment of the swamp timber to the land owner. Consideration of this need extend no further than that the latter is bound by the terms of the timber deed; as the subsequent owner of the land she stands in the shoes of the grantor in that instrument. It contains a covenant that he "shall and will promptly pay all taxes that are now due and that hereafter may become due on the said land and timber * * *." Thus so far as the contract is concerned the delict of failure to return the timber for taxation is not the delict of the respondent but of the owner of the land, the successor in title to the timber-grantor, and it does not seem to me that it properly lies in her mouth to claim a forfeiture of respondent's otherwise remaining rights under the contract by reason of her violation of its terms.
For the foregoing reasons I think all of the questions presented by the appellants should be decided against them, and the judgment below affirmed. I regret that being of this opinion I cannot concur in the denial of the petition for a reargument of the case.