The principal questions made on the appeal are founded on the several assignments of error, which may here be disposed of together, that challenge the conclusions of law made by the court that appellee was not owing appellants in damages for the value: (1) Of the trees cut and removed from the land; or (2) for the turpentine taken from the trees; or (3) for the rental value of the land during the time the trees were being turpentined. The questions made are predicated, of course, upon the established facts as found and considered by the trial court. In order to determine the rights of the parties in respect to the questions, it is required that the timber deed from appellants to appellee be construed and given legal effect. There are quite a number of generally reported cases dealing with the sale of growing trees upon the principal question of whether such sale operated to pass an interest in land or to be a sale of chattels only. By one line of the cases the question is answered that according to the facts therein the sale of growing trees operates to be a sale of an interest in land. By the other line of cases a sale of growing trees is held under the facts therein to be a sale of chattels only. And the reasons and principles determining the ruling in such cases upon the effect that should be ascribed to the sale could well be considered as furnishing a criterion to determine the effect to be given the sale in this case. A number of the cases rather turn on the point that in them the agreement of the parties was not made with a view to the removal and severance of the trees from the soil, but their remaining thereon; and standing trees being legally regarded as part and parcel of the land in which they are rooted and from which they draw their support, therefore, in that sense, the sale passed an interest to real estate. And the reason for the holding in a number of cases that a sale of growing trees is a sale of chattels only is that in the contemplation and agreement of the parties in such particular cases the sale was made in prospect of the severance and removal of the trees from the land, and not to remain on the land, and therefore the sale was intended and operated to be a sale as chattels only. It is quite unnecessary to cite these numerous cases. And if the distinction made in the cases is to be observed as a property rule, the two doctrines are announced that in a sale of trees growing upon land where in the particular case (1) it is contemplated by the conveyance that the vendee is to have some beneficial use of the land in connection with the trees and that the trees shall remain thereon so as to receive profit and growth from the growing surface of the land, the sale operates as a sale of an interest in land; and (2) where it is contemplated and intended by the conveyance that there shall be a severance and taking away of the growing trees from the land, such sale must be regarded and operates to be a sale as of chattels only. It is quite well settled by the cases that growing trees may by the agreement of the parties be severed, in contemplation of law, from the land, and be dealt with in the contract as personalty removable immediately or timely without an actual severance at the time. In this state the two rules above stated have been announced and followed. The first rule is applied in the case of Lodwick Lbr. Co. v. Taylor, 100 Tex. 270, 98 S.W. 238, 123 Am. St. Rep. 803. The second rule is applied in the cases of Beauchamp v. Williams, 115 S.W. *Page 42 130; Development Co. v. Lumber Co., 139 S.W. 1015; Carter v. Clark Boyce Lbr. Co., 149 S.W. 278; Lumber Co. v. McWhorter, 156 S.W. 1153; Lancaster v. Roth, 155 S.W. 597. From the Taylor Case, supra, firstly referred to, flows the rule that, an interest in the nature of realty being conveyed, there goes with the title to the timber the right to the use of the soil for its sustenance and of entry upon the land for its enjoyment. And from the cases immediately above, secondly mentioned, flows the rule that the trees being conveyed in the nature of personalty in prospect of severance and removal within a reasonable time or agreed time, the extent and duration of the grant is limited to and the right determined at the end of the agreed time.
Bearing in mind the principle and rules stated, the deed in this case is to be referred to in order to see the rights it conveys and effect of the rights. It appears therefrom that appellants purported to and did convey to appellee, for the consideration therein stated, "all pine timber from 12 inches and up now standing or growing" on the land described. And appellee was "to have and to hold the above-described timber, with all and singular the rights and privileges to enter upon the said lands with teams, tools and men to cut and remove said timber off of said land, with this exception, that the said R. C. Conn or his successors is not to enter into my present inclosures, and we hereby give R. C. Conn five years to cut and remove the said timber off the said land, beginning the 19th day of January, A.D. 1906, and end the 19th day of January, A.D. 1911, and should the said R. C. Conn fail to cut the timber in the period of time or five years, we do hereby agree to extend the time for as long as the said R. C. Conn may want, provided the said R. C. Conn and his successors shall pay unto us two hundred and thirty-six dollars ($236.00) per annum each year that he may hold the timber and the said land." According to the language of the parties, as seen, there is stipulated and agreed that a severance and removal of the growing trees shall be, first, within five years from the date of the deed; and failing to sever and remove the trees within that time, then within an extended period thereafter, upon payment of a rental for their occupying the land during such extended period. Thus there is made to plainly appear a sale made by the parties with the view and intention to the severance and removal of the trees from the land within a stipulated time. And so there is present in the sale all elements within the principle governing the effect given such conveyances of growing trees as a sale of chattels only. Concluding, as we do, that the result of the deed, construed as a whole, evidences the intention and agreement to pass the trees as chattels only, "with all and singular the rights and privileges to enter upon said land with teams, tools and men to cut and remove said timber off of said land," then the rule in such cases would be applicable that the extent and duration of the grant is limited to and the right determined at the end of the agreed time.
Recurring to the stipulation in the deed, in order to determine the time limit for severance and removal of the trees from the land, it appears that after five years from the date of the deed, which time in this case had actually expired, appellee, upon paying a stipulated sum, should have extension of as much time more in which to sever and remove the trees as he "may want." Appellants contend that this latter stipulation is unilateral and void. We think, however, that the word "want" should be construed in the sense and meaning of "need," and that the language of the entire stipulation was intended by the parties to express the agreement that appellee should on paying the rental have the time needed to sever and remove the trees from the land. This construction makes consistent and harmonizes the further provision of the deed, "But it is understood and agreed that when all the said timber is cut and removed off of said land from 12 in. dia. measuring 18 ins. from the ground and upward, this deed shall become null and void."
Now it is conclusive, as found by the court, that appellee tendered the rental within the time of six and seven years from the date of the deed, and was proceeding in diligence during that time to cut and remove the trees. And it is not questioned by appellants that the time was not proper and such as was reasonably required to remove the trees if the stipulation was not void. It follows therefore that appellee was not cutting and removing the trees in violation of his contract. And consequently appellee, under his conveyance and under the facts, had the right to the enjoyment of his property to the extent of turpentining the trees and using such products and cutting and removing the timber, and the trial court correctly so held. And in view of the finding of fact by the trial court that no damage was done to the soil, or use made of the soil beyond what was necessary and usually incident to turpentining trees, the ruling of the court denying appellants any damages or rental value therefor was correct. This ruling overrules and disposes of all the assignments except the fourth.
The fourth assignment challenges the conclusion of fact made by the court that appellee had nothing to do with the turpentining of the trees on the land, but merely sold Rosemond Day his right thereto by reason of the conveyance and sale he had from appellants. The finding is supported by the evidence, and the assignment is overruled. The contract of appellee with Rosemond Day by its terms leased to them for turpentine and resin purposes only all the standing and growing pine timber which measured 12 *Page 43 inches in diameter 18 inches from the ground, as passed by appellants to appellee; and appellee had nothing to do with the turpentining of the trees. It is true Rosemond Day in violation of the contract destroyed In turpentining 192 trees under the dimensions, but it was a trespass, in the facts, for which Rosemond Day were liable. And appellants did not sue Rosemond Day.
The judgment is affirmed.