concurring.
The majority holds that the 1971 deed unambiguously gives plaintiff until 1997 to exercise its reserved timber rights. The majority accordingly reverses the trial court’s judgment in defendant’s favor; it remands for further proceedings only because plaintiff did not file a cross-motion for summary judgment. I agree with the majority that this case should be reversed and remanded but for a different reason. In my view, the 1971 deed is ambiguous, and the parties should be permitted to introduce evidence on its meaning. See Pacific First Bank v. New Morgan Park Corp., 319 Or 342, 347-48, 876 P2d 761 (1994).
*211Before 1968, the Gibsons conveyed various interests in land and timber to Harris Pine Mills. In 1968, Harris Pine Mills and the Gibsons entered into an agreement in which, among other things, they agreed that Harris Pine Mills had until 1997 to cut merchantable timber on some but not all the real property that the Gibsons had conveyed to Harris Pine Mills. The agreement also defined the term “merchantable timber,” gave the Gibsons certain reserved rights, and provided that the Gibsons would indemnify Harris Pine Mills if the land and timber rights that the Gibsons had conveyed to Harris were encumbered by liens. In paragraph 9 of the agreement, Harris Pine Mills gave the Gibsons an option to purchase a separate parcel of land that Harris Pine Mills owned “subject to any timber rights in [Harris Pine Mills, its] successors and assigns.”
In 1971, Harris Pine Mills deeded the separate parcel of land described in paragraph 9 of the 1968 agreement to the Gibsons, “[excepting therefrom any and all merchantable timber now standing, including future growth, according to the terms and conditions of [the 1968 agreement between Harris Pine Mills and the Gibsons].” The dispute in this case centers on what the phrase “according to the terms and conditions [of the 1968 agreement]” means. Plaintiff argues that that phrase incorporates all the terms and conditions of the 1968 agreement into the 1971 deed, including the provision in paragraph 1 extending the time in which Harris Pine Mills may harvest timber until 1997. The majority agrees and finds the parties’ intent on this point unambiguous.
In my view, the majority’s conclusion is problematic. The 1971 deed was intended to incorporate some but not necessarily all of the 1968 agreement. Several of the terms and conditions that are contained in the 1968 agreement are simply irrelevant to the 1971 deed. In paragraph 5 of the 1968 agreement, the Gibsons agreed to hold Harris Pine Mills harmless if the timber rights that the Gibsons had conveyed to Harris Pine Mills were encumbered in any way. Because Harris Pine Mills is the grantor in the 1971 deed and reserved timber rights rather than granted them, that term of the 1968 agreement has no apparent application to the 1971 deed. The same is true for paragraph 7 of the 1968 *212agreement. Paragraph 7 confirms that the Gibsons had granted some timber rights on one of the properties to the Pilot Rock Lumber Company. Whatever timber rights the Gibsons had granted to the Pilot Rock Lumber Company has no bearing on the timber rights that Harris Pine Mills reserved on the separate parcel of land it conveyed to the Gibsons.
Paragraph 1 of the 1968 agreement, the paragraph on which plaintiff relies, falls somewhere between the paragraphs that clearly do not apply and those that clearly do. That paragraph provides that “[t]he term for cutting and removal of merchantable timber conveyed and/or sold to [Harris Pine Mills] by the foregoing instruments is hereby extended until to [sic] and including the 10th day of October, 1997.” The agreement provides that the merchantable timber “heretofore conveyed and sold to [Harris Pine Mills] and affected by this extension is situated on the following described real property.” The 1968 agreement then describes specific parcels of land that paragraph 1 affects.
By its terms, paragraph 1 of the 1968 agreement applies only to the described property set out in that paragraph. It does not apply to the land that Harris Pine Mills gave the Gibsons an option to purchase. It may be that, when Harris Pine Mills deeded property to the Gibsons in 1971 and reserved the timber rights for itself, it intended that the time set out in paragraph 1 of the 1968 agreement would apply to the timber rights it reserved in 1971 as well as to the other parcels of land specified in paragraph 1. It is equally plausible that, in light of the express limitations set out in paragraph 1, the parties understood that that paragraph was as inapplicable to the 1971 deed as paragraphs 5 and 7 are. Because either conclusion is plausible, the trial court should not have granted summary judgment in defendant’s favor and held that the parties clearly did not intend to incorporate paragraph 1. Conversely, in my view, we should not conclude that the parties unambiguously intended to incorporate that paragraph. Compare NW Pac. Indem. v. Junction City Water Dist., 295 Or 553, 668 P2d 1206 (1983), modified on other grounds 296 Or 365, 677 P2d 671 (1984) (resolving issue as a question of law when the parties’ intent was clear). Although I agree with the majority that we should reverse and remand, *213I would allow the parties to introduce evidence on remand to resolve the ambiguity. The majority’s opinion forecloses that possibility.