I cannot concur in the opinion of the Chief Justice in adopting the decree of the Circuit Court as the judgment of this Court for the reasons *Page 252k assigned by the Circuit Judge. This is the second appeal in this case; the first appeal will be found in 93 S.C. 13,75 S.E. 1012. It is not necessary to consider the grounds of appeal separately. The case was heard on the Circuit, on an agreed state of facts, and in these facts the question of reasonable time was not mentioned, and yet his Honor found that the time desired by the plaintiff was not unreasonable, but, on the contrary, appeared to be reasonable; he was *Page 252l clearly in error in determining and deciding an issue that was not before him, and committing this Court by adopting his decree as the judgment of this Court to a decision and a policy that will be far-reaching in its effect and prejudge other cases of similar character. Each case must stand upon the particular facts and circumstances. In the case at bar the grantor granted the timber on the land, 324 acres, on *Page 252m January 24, 1902, for $300, and granted "to it and them the period of ten years in which to cut and remove the said timber from the land, and in case the timber is not cut and removed before the expiration of the said period then that the second party, its successors or assigns, shall have such additional time therefor as it or they may desire, but in the last mentioned event, the said second party, its successors or *Page 252n assigns, shall, during the extended period, pay interest on the original purchase price, year by year, in advance, at the rate of six per cent. per annum." The agreed facts in the case show that no timber was removed from the land at all in the 10 years, but that the grantees, attempting to extend the time, on January 18, 1912, tendered to the grantor $18 and a notice in writing that they would pay the same each *Page 252o year in advance for the period of 10 years, it being 6 per cent. interest on the original purchase price of $300. I am decidedly of opinion that the decree of his Honor should be reversed, and the case remanded for the purpose of having evidence as to whether or not the grantees could have removed the timber within the 10 years allowed, and whether or not that was a reasonable time for that purpose, *Page 252p and if not, what would be a reasonable time? The deed contemplated some time to commence, and under our decisions the cutting must be within a reasonable time. In the absence of any testimony to the contrary, it appears to me that from a tract of land in acreage no greater than this, the parties could not have contemplated that it would take 20 years to remove the timber, and during all that time that the *Page 253 owner of the land was deprived of the use of it, and had to pay taxes on it. It should appear before we enforce specific performance that the extension asked for by the respondents was reasonable, and would not work damage, hurt, or injury to the appellants, and especially Pearson, the now owner. and if it does, and that he can be compensated in money, and *Page 254 justice and equity done to both sides without manifest injury to either, then that it may be done. I do not think it necessary to go further and say anything that may handicap any one in any future litigation in reference to those timber grants, as each case must stand on its own merits, and in my opinion the most vital point in each case is the reasonableness *Page 255 or unreasonableness of the time for removal. In the former appeal in this case it was said, quoting from Mr. Justice Hydrick in Marthinson v. McCutchen, 84 S.C. 256,66 S.E. 120: "It is well settled that specific performance rests in the sound discretion of the Court, and that the Court will not decree specific performance of hard and unconscionable bargains, or where the price is so grossly inadequate as to shock the conscience and raise a presumption of fraud (Reese v. Holmes, 5 Rich. Eq. 571), and certainly not where it appears that the contract sought to be enforced does not express the true agreement of the parties, either by reason of fraud, accident, or mistake. The general rule is that to merit the interposition of the Court, it must appear that the contract is fair, just, and equitable. Cabeen v. Gordon, 1 Hill Eq. 51; Holley v. Anness, 41 S.C. 354, 19 S.E. 646."
Under the facts as agreed on in this case, I do not think judgment should be affirmed, but reversed and remanded for testimony, as hereinbefore indicated.
MR. JUSTICE GAGE did not sit in this case.
FOOTNOTE — On the question of the time for the removal of timber, generally, see note in 55 L.R.A. 525. And upon the effect of reservation of right to remove timber within specified time, see note in 3 L.R.A. (N.S.) 649. And for the rights and remedies of landowner and owner of timber after expiration of time stipulated for removal of the same, see notes in 29 L.R.A. (N.S.) 547, and 47 L.R.A. (N.S.) 882. And as to whether timber sold or reserved without specifying time must be removed within reasonable time, see note in 46 L.R.A. (N.S.) 672.
ADDITIONAL FOOTNOTE. — The following is the Circuit decree by Judge Shipp, referred to in argument of Messrs. Smythe Visanska:
Midland Timber Company, Plaintiff, vs.
J.F. Prettyman Sons, Defendant.
DECREE. This is a controversy without action between Midland Timber Company, a corporation, plaintiff, and J.F. Prettyman Sons, a corporation, defendant, in the nature of a suit for specific performance.
It appears from the agreed statement of facts that the plaintiff and the defendant entered into a valid contract in writing, by which the plaintiff contracted to sell, and the defendant contracted to buy, certain timber on a certain tract of land in the county and State aforesaid, together with the usual easements; and that under the terms of the said contract, the defendant was to have the term of ten years in which to cut and remove the said timber. The plaintiff acquired title to the timber in question from the Atlantic Coast Lumber Corporation, which acquired title by sundry mesne conveyances from Atlantic Coast Lumber Company, to which the timber was originally conveyed by one Emma A. Heape, by deed dated January 24th, 1902, this deed being set forth in full in the agreed case. The following is the portion of said deed relating to the time for cutting and removing the timber:
"Second. That the said second party, its successors or assigns, shall have, and the same is hereby, granted to it or them, the period of ten years 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 the said period, then that the said second party, its successors or assigns, shall have such additional time therefor as it or they may desire, but in the last mentioned event, the said second party, its successors or assigns shall, during the extended period, pay interest on the original purchase price, year by year, in advance, at the rate of six per cent. per annum."
Before the expiration of the period of ten years from date of said deed, to wit: On January 18, 1912, and at the expiration of the period of ten years from the date of said deed, to wit: On January 24th 1912, the plaintiff, as the successor in title of the Atlantic Coast Lumber Company, gave the said Emma A. Heape notice in writing that it desired ten years additional time in which to cut and remove the timber in question, and tendered her the sum of eighteen dollars in legal tender for the first year of extended period, but this tender was declined on both occasions. No part of the timber in question was cut or removed within ten years from the date of the deed. Thereafter, plaintiff tendered to the defendant a deed for the timber and easements in question in compliance with its contract, but the defendant declined to accept the title on the ground that it doubts the right of Midland Timber Company to an extension of ten years in which to cut and remove the timber, and further also doubts the right of the plaintiff to any extension of time whatever. The question submitted to the Court is, whether, under the terms of the deed made by Emma A. Heape to Atlantic Coast Lumber Company, and under the facts stated in the agreed case, Midland Timber Company, the plaintiff herein, has the legal right to an extension of as much as ten years from the 24th day of January, 1912, in which to cut and remove the timber in question, provided it makes the necessary payments annually in advance. If so, the defendant should be compelled to comply with its contract. If not, the defendant should not be compelled to comply. It, therefore, becomes the duty of the Court to construe the timber deed above mentioned.
Applying the principles of construction laid down by the Supreme Court in several recent cases, hereinafter more particularly referred to, the true intent and meaning of the deed seems to be that the grantee, for the purchase price therein mentioned, acquired title to the timber, defeasible upon its failure to remove the same within ten years from the date of the deed; together, however, with the right to extend the time for cutting and removing the timber for such length of time as it might desire, but upon the express condition that it should pay a new and valuable consideration for each year of the said extended period annually in advance. In other words, the first period of time was absolutely fixed, while the extended period by the express term of the contract, was left to the grantee to fix, but the longer time it elects, the greater amount it will have to pay. This appears to be the meaning of the deed from the interpretation of its language. It is the duty of the Court to construe contracts as they are written, unless they violate some established rule of law. If this construction of the deed in question be correct, it would follow that the plaintiff is entitled to have the defendant comply with its contract.
The Supreme Court of North Carolina, in the case of Bateman v.Kramer Lumber Company, 70 S.E. 474, 34 L.R.A. (N.S.) 615, holds that the provision for an extension of time in a timber deed, conferring as it does a privilege and unilateral in its obligation, partakes to some extent, of the nature of an option, and, therefore, the grantee must strictly comply with its terms by notifying the grantor on or before the expiration of the specified period and tendering the stipulated amount. This rule appears to be eminently just, and it is in accordance with the decision in the case of Hill v. Burton Lumber Company,90 S.C. 176, 72 S.E. 1085. I think the plaintiff has fully complied with this rule. In the case of Alderman v. Wilson, 71 S.C. 64, 50 S.E. 643, there was a clause in a right of way deed relating to the use of a right of way very similar in its language to the clause now under consideration, which the Court held conferred "a privilege or option."
The defendant contends, however, that the deed cannot be construed as above for the reason that inasmuch as the cutting and removing of the timber was not commenced within the specified period of ten years, the grantee and its assigns have no right to any extension whatever.
It might suffice to say that such a construction of the clause in question would tend to defeat the manifest intention of the parties gathered from the language used. This deed is very different in its terms from the deed construed by the Court in the case of Flagler v. AtlanticCoast Lumber Corporation, 89 S.C. 328, 71 S.C. 849, where the period of time began from the commencement of the cutting and removal. There is nothing on the face of the deed in the case at bar which required the grantee to commence cutting during the period of ten years. His failure to commence, or complete if he did commence, would, of course, determine his estate, unless he properly took advantage of the right to an extension of time. A similar question was before the Supreme Court of North Carolina in the case of Norfolk Lumber Company v. Smith,63 S.E. 954, where the position was taken that the extension simply permitted the grantee to remove, and not to cut and remove, and the Court held, upon the second hearing of the case, that the grantee had the right both to cut and remove for the period covered by the extension, "this being the clear intent of the parties." The same doctrine was laid down in the case of Bateman v. Kramer Lumber Company, supra. The deed does not say that in case the cutting and removal of the timber is not completed, the grantee may have an extension, but says "in case the said timber is not cut and removed."
The defendant further contends that if the plaintiff is entitled to any extension of time, it would only be entitled to a reasonable time, taking the position that this is the logical result of the decision in the case ofFlagler v. Atlantic Coast Lumber Corporation, supra.
The following language from the case of Butterfield Lumber Company v. Guy, Miss., 46 So. 78, 15 L.R.A. (N.S.) 1123, upon the construction of timber deeds, is, I think, very apt in this connection:
"No topic in the law has been the subject of a greater variety of decisions than the one involved in this suit. Each case, in a large measure, must rest upon the interpretation of the particular contract under which it arises, since nearly every contract contains different terms. We can derive little benefit by a resort to the authorities of other States, because of the conflict of decisions. The only safe rule for this Court to follow is to give effect to the contracts which the parties themselves have entered into, interpreted according to the laws of this State as shown by former decisions dealing with this character of deed. The precise question presented has never been decided in this State."
The Courts of many States appear to hold that, apart from the language of the deed, there is a presumption of law that timber is to be cut and removed within a reasonable time, applying this principle even where no time whatever is specified for such cutting and removing. This, however, seems clearly not to be the law in this State. Our Supreme Court has held in the cases of Knotts v. Hydrick, 12 Rich. Law 314, and Wilson v. Alderman, 80 S.C. 106, 61 S.E. 217, that where no time is specified for the cutting and removal of timber, the owner of the timber cannot be required to cut and remove it within a reasonable time. The authority of these cases is expressly recognized in the Flagler case above referred to, the ground given for the decision of these cases being that "the deeds under construction failed to show by anything on their face, any intention on the part of the parties thereto of limiting the right to remove." In the Flagler case, the Court had under consideration a deed allowing the grantee a certain number of years in which to cut and remove the timber from the time he commenced to cut and remove. Nothing whatever was said in the deed as to when he should commence, but the language of the deed showed that the parties had in contemplation some time for the commencement of the cutting, and the deed being silent as to the time of commencement, the law would imply that the commencement should be within a reasonable time, upon the well established principle "that things agreed to be done inter partes shall be done within a reasonable time." The Court adverts several times to the fact that this intention was to be gathered from the language of the deed itself. The gist of the decision is well expressed in the following language:
"Suffice it to say that we are of opinion that both by the inherent reason of the thing, as well as by authority, that the true rule is that whenever it is apparent in a contract that the parties had in view some time for the commencement of the removal of timber, which intent was not embodied in the terms of the contract, that the law will presume, and will enforce that such commencement of the removal of the timber shall be within a reasonable time from the date of the contract."
This Court also refers to the fact that it was argued in behalf of the timber company that "it lies solely within the discretion of the grantee to determine when he will commence," but the Court concluded from the language of the deed that this was not the intention of the parties. It seems to follow, however, that if this had been the intention of the parties, and they had so expressed themselves, the Court would have been bound to enforce such intentions.
In the case at bar, the extension clause leaves nothing to implication, but expressly says that the grantee shall have such additional time as it may desire, provided it complies with the conditions. I can conceive of no reason why such a contract should not be valid and binding. The grantor has expressly granted to the grantee the right to elect how much additional time it will take, provided it pays for the same. How could the grantor come in and say that while she gave this right to the grantee by the specific terms of her grant, the grantee cannot avail itself of the contract, but that the Court must fix the time? It seems to me that this would be substituting the contract of the Court for the contract of the parties. If it had simply appeared from the language of the deed that some additional time was in the minds of the parties, but that neither party was given the right to fix the time, and the extent of the time was not expressed, then the Court might well say that a reasonable time would be implied upon the principle above mentioned, to wit: That the law implies a stipulation "that things agreed to be done inter partes shall be done within a reasonable time." But as Judge Duff well says in the case of Beatty et al. v. Mattheson, 40 Can. Sup. Ct. 557, 12 A. E. Ann. Cases 913, "that rule must always yield where the terms of the instrument are on their true construction sufficient to manifest a contrary intention, and in this case such contrary intention would seem to be sufficiently manifested by the terms of the grant.
In the Flagler case, supra, the Court cites and follows the case ofHall v. Eastman, 89 Miss. 588, 43 So. 2, which was a case almost identical with the Flagler case, and in which the Court makes this significant language:
"We propose to decide in this case nothing but what this instrument presents for decision. This is not the case of a grant by A, owning both the land and the timber thereon, of the timber in fee simple, without qualification. We will construe that sort of an instrument when the case arises. This is not the case of a deed giving the grantee `as long as he wishes' in which to remove the timber, nor the case of a deed giving the grantee the right to commence cutting when he pleases. This instrument is peculiar in its terms and express in its provisions."
That case and the Flagler case both cite as authoritative the case ofMcRae v. Stillwell, 111 Ga. 55, 36 S.E. 304. The Mississippi Court says in reference to it: "That case, like this, falls with the class of cases in which the instrument by express provision shows the intention to have been that the cutting should commence within a reasonable time."
I am aware that the case of Young v. Camp Mfg. Co., Va.,66 S.E. 843, involves the construction of a clause very much like the one under consideration, and the Virginia Court holds that this clause should not be "literally construed," and that it confers upon the grantee a reasonable time only. I do not think, however, that this decision is authoritative in South Carolina, for the reason that the authorities upon which the Virginia Court relies lay down principles relating to the construction of timber deeds which our Court expressly repudiates. The Virginia Court cites the cases of Hoflin v. Bingham, 56 Ala. 556; Boults v.Mitchell, 15 Pa. 371, and Hill v. Hill, 113 Mass. 103, which are cases involving reservations of grants of timber without specifying any time for the removal of same, and which hold that the timber must be removed within a reasonable time. All these cases are in direct conflict with the decision in the cases of Knotts v. Hydrick, and Wilson v. Alderman,supra.
The Court also cites Duke v. N. W. Ry. Co., 106 Va. 152,55 S.E. 548, which holds that where a contract for the sale and delivery of crossties to a railroad company fixes no time for their delivery, the contract must be performed within a reasonable time. The holding in this case seems manifestly correct, among other reasons, because it relates to a sale of personal property, but I do not see how this could be regarded as authority in a case involving the question of the removal of standing timber.
The Court also cited the case of McRae v. Stillwell, supra, but, as already shown, that case lends no support whatever to this doctrine.
The Virginia Court has, I conclude, based its decision upon premises which do not appear to be valid under the laws as laid down in this State, and gives no good reason why the language of the contract should not be construed according to its rational import.
I might add that, even if the plaintiff in the case at bar were only entitled to a reasonable time, it does not appear that the time desired by it is unreasonable.
The defendant also contends that, in any event, the plaintiff is simply entitled to an extension from year to year, and has no right to demand an extension of ten years. It is sufficient to say, in regard to this, that the plaintiff by its tender has simply acquired the present right to an extension of one year, its right to a further extension being dependent upon the payment annually in advance of the amount specified, and the fact that the plaintiff has notified the grantor that it desires only ten years, cannot be objected by the grantor. Indeed, it would seem to be contemplated that at the expiration of the first period, the grantee should then notify the grantor of the maximum limit of time it desires, and in any view of the matter, I do not see how the grantor can be prejudiced by this notice.
Defendant raises the point that the following language, which will be found in the deed involved in the case at bar, immediately following the clause above construed, shows that it was the intention of the parties to limit the extension:
"The said first party agrees that the timber cut by the said second party, its successors or assigns, for the purpose of opening, clearing, building and constructing of the railroads, tramways, etc., as hereinbefore provided for, shall in no way whatsoever affect the time granted for cutting and removing the timber conveyed under this deed from the tract or tracts aforesaid."
I am unable to see how, in any view of the matter, this clause can have any effect upon the express language of the clause relating to the time for the cutting and removal of the timber. By consent of the parties, the original deed was exhibited to me, and I find that the deed was made upon a printed blank which had been used for deeds granting so many years from the time the grantee should commence to cut and remove, and these words were erased by drawing a pen through them, but the printed clause above quoted was not erased, probably through inadvertence. If the deed had read as the printed form did, that the grantee should have a specified time from the commencement of the cutting and removal, the clause in question was probably intended to mean that if the grantee should enter upon the land and cut timber for the purpose of building a railroad, this should not be construed to mean that the cutting of the timber has been commenced. There is another construction, however, which may be given to the clause, and that is, that it was intended to prevent the position being taken that the grantee, having entered upon the land and cut a portion of the timber thereon, will be held to have exhausted his rights, and will not be permitted to re-enter for this purpose. Subsequently to the execution of this deed, this point was made in the case of Wilson v. Alderman, but was not accepted by the Court. But the fact that parties unnecessarily use language to prevent untenable positions being taken cannot prejudice them. See the case of Lewis v. Chemical Co., 69 S.C. 364, 48 S.E. 280.
Defendant further contends that even if the construction above set forth is correct, plaintiff has lost its right to any extension of time on the ground that its tender was conditional by reason of the following language contained in the notice set forth in the agreed case:
"It is, however, expressly understood that this notice of the intention and purpose of the said Midland Timber Company to extend the time within which to cut and remove the said timber, and to use and enjoy the said timber, rights, ways, privileges and easements, as aforesaid, is not intended, nor shall it be taken, to limit in any manner the grant in fee simple to the permanent and exclusive right of way as set forth in the aforementioned deed of conveyance executed by Emma A. Heape."
Defendant's position is that plaintiff has no permanent right of way.
The deed made by Emma A. Heape to Atlantic Coast Lumber Company appears to be a deed for certain timber situate upon certain land, together with the usual rights, ways, privileges and easements incident to the granting of timber. In addition to this, the deed also contains the following clause:
"This deed further witnesseth that the said party of the first part does hereby also grant, bargain, sell and convey to the party of the second part, its successors or assigns, a permanent and exclusive right of way 90 feet wide, upon and across the tract or tracts of land described as aforesaid, and on all contiguous lands, to be selected and located by the said second party, its successors or assigns whenever and wherever so desired, to be used for a permanent railroad or tramway, or for any permanent branch railroad or tramway."
I think that the right of way granted in the clause just quoted is a separate and distinct grant from the rest of the deed. I know of no rule of law, and no authority for such has been cited, which would prevent parties from making separate and distinct grants in the same instrument. It appears to be perfectly obvious that the right of way granted by this clause has no reference whatever to the timber, because in the clause relating to the timber rights, the grantee is given the right "to build, construct, maintain and operate railroads, tramways, cart and wagon ways across said land on such routes as may be selected by the said second party, its successors or assigns * * * and to do any and all other things that may be necessary or convenient for the cutting, handling, hauling and removing of the timber aforesaid." The language last quoted would indeed be meaningless if the right of way referred to above related to the timber. Besides, the said right of way is expressly granted for the purpose of a permanent railroad. The right of the grantee to this permanent right of way would, it seems, exist after the timber was cut and removed, and whether the grantee cut and removed the timber or not. It is true, the notice refers to the grant of the right of way as being in fee simple, but so it is, for the purpose of a permanent railroad. If the right of way has not yet been located, this cannot affect the validity of the grant. The width of the right of way is specified in this deed, but it has been held that even where the width was not specified the grant of a right of way was valid. By the terms of the grant, the grantee is given the right to locate. There is no rule of law against this. It is true, it is suggested in argument, although not set forth in the case, that the right of way has never been located, but an unlocated right of way is valid, the only difference being that equity will not intervene to protect an unlocated right of way. See MarionCounty Lumber Company v. Tilghman Lumber Company, 75 S.C. 220,55 S.E. 337.
It was doubtless unnecessary in view for any reference to be made to the right of way in the notice above referred to, but the fact that it was mentioned in the notice is immaterial, for it was probably mentioned to prevent any misunderstanding.
My conclusion is that "when parties have made lawful contracts in language leaving no doubt as to the intention, there was no ground for any interference by the Courts, but the contract must be enforced as written." The question presented in the agreed case, for the reasons set forth above, must be answered in the affirmative. It is, therefore,
Ordered, adjudged and decreed, that the defendant, J.F. Prettyman Sons, be, and it is hereby, required to accept the title tendered to it by the plaintiff, Midland Timber Company, and to pay the purchase price as fixed by its contract; the costs of this case to be paid equally by the two parties thereto, as provided in the agreed case.
(Signed) S.W.G. SHIPP, Circuit Judge. Florence, S.C. May 23d 1912.
Reversed for defect of parties. See 93 S.C. 13.