Hall v. Eastman, Gardiner & Co.

Whitfield, C. J.,

delivered the opinion of the court.

The instrument to be interpreted in this case is as follows: “In consideration of sixty-seven dollars and fifty cents ($67.50) to us paid, the receipt whereof is hereby acknowledged, we do hereby grant, sell, convey, and warrant to Eastman, Gardiner & Company, a corporation, its successors and assigns, all of the timber now or hereafter growing, standing, lying, or being on the following described land, situated in the county of Simpson, State of Mississippi, and described as follows: The southwest 1-4 of northeast 1-4, section twenty-five, township. 10, range 17 west — -together with the right, at any and all times from the date hereof, of egress and ingress upon said land to cut down and remove said timber therefrom; and do also grant to said Eastman, Gardiner & Company, or its successors and assigns, for the consideration aforesaid, the right of way over, through, and across said property, or any part thereof, to construct, maintain, and use logging railways or tram roads or dirt roads, with the right to construct, maintain, and use spur tracks or roads over, through, and across said lands continuously for the purpose of removing the timber now owned or to be acquired by said Eastman, Gardiner & Company, or their successors or assigns,- from said land and all lands adjacent to the above described lands. Eastman, Gardiner & Company, or their successors and assigns, also to have the right to erect on said lands, and to remove from said lands at any and all times, any and all buildings or other property required for logging purposes. It is especially covenanted and agreed that as to each forty-acre tract herein described and conveyed this deed shall continue and remain in force until said Eastman, Gardiner & Company, their successors and assigns, commence to cut and lumber the same, and for one year thereafter, and then to become void and of no effect; but the right of way of said Eastman, Gardiner & Company, their successors and assigns, for railways or tram roads or dirt roads, whether main or spur tracts or roads, shall remain in full force. It is further covenanted and agreed that Eastman, Gardiner & Company, or their successors and assigns, will pay the taxes on the land from the date hereof until the timber is removed. "Witness our signature, this 21st day of'March, 1900. Bud Hall. May Hall.”

We propose to decide, in this case, nothing except what this instrument pr^ents 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 instrument when the ease arises. This is not the case of a deed giving the grantee “as long as he wishes” in which to move 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. The special covenant contained in it controls and limits, of course, the general provision preceding. That special covenant is as follows: . “It is especially covenanted and agreed that, as to each forty-acre tract herein described and conveyed, this deed shall continue and remain in force until the said Eastman, Gardiner & Company, their successors and assigns, commence to cut and lumber the sanie, and for one year thereafter, and then to become void and of no effect'.” This is the controlling clause in the instrument; and it plainly means, what it expressly declares, that all the timber, whether growing, standing, lying, or being on the lands described, and whether growing thereon when the instrument is made, March 21, 1900, or thereafter growing thereon, which the grantee could take in' one year from that date — that is to say, could “cut and remove” — was such timber as the grantee could cut and remove in one year from the time it commenced to cut. The proposition contended for by learned counsel for appellee, that under this instrument the grantee had a fee simple title to all the timber growing on the land at the date of the instrument or growing at any time thereafter, and all such timber, whether growing, standing, lying, or being on said land, without any limit whatever, is, of course, utterly untenable. Indeed, in one part of their brief learned counsel for appellee say: “We are frank to say that in our opinion this limitation is valid. It limits, in virtue of the time therein expressed, what has gone before, and, one year after Eastman, Gardiner & Company begins to cut and lumber the property, the deed by its express condition becomes void.”

This concession, which is perfectly correct «n sound law, contravenes completely the other contention, in another part of learned counsel’s brief, that the instrument provided a grant of all the timber, without any qualification whatever. This concession also completely answers the untenable proposition that a case of forfeiture is here presented. There is no case whatever of forfeiture presented in this cause. The simple provision is that, within one year after cutting begins on each 40-acre tract, the right to cut shall cease and 'the conveyance become void; in other words, the instrument itself provides its own time of expiration, and the contract becomes void under it. It ceases, not by forfeiture to be declared by the court, but by virtue of an express provision in the instrument itself, to-wit, the provision that the instrument shall become void one year after the cutting commences. Nothing can be clearer than that this provision fixes by contract the expiration of the right of the grantee to cnt and remove timber, and that no element of forfeiture is in any way involved. Notwithstanding this concession, learned counsel say in another part of their brief that “it was expressly contracted and agreed that at any and all times appellee, its successors and assigns, could enter to cut and remove this timber, and are not restricted to any reasonable or any other time whatsoever.”

Again, in other places of learned counsel’s brief it is earnestly argued that the effect of the instrument is to vest an absolute fee-simple title of all the timber then and there on the land, and that which may be lying, standing or being on the land, without any limitation whatever. The argument is that the grantee might commence to cut whenever he pleased, and not until he pleased, and, if he never begins, he would still own in fee all said timber, and that these rights are vested in the grantee by the terms of this instrument. Nothing could be further from the intention and purpose of the makers of this instrument as expressly set forth in the special covenant named. ■ The grantee had purchased timber standing on a very large number of 40-acre tracts; this case being simply a test case to determine the rights of the parties to timber on all these lands.

The plain purpose of the instrument is to give to the grantee the right to cut and remove the timber. There was not the remotest thought, on the part of either, that the grantee should have the right to the timber, the timber to be kept standing on the land forever, or indefinitely. It is made the duty of the grantee to cut and remove the timber from the land. The provisions of this instrument abound as to the right and the duty to enter and cut and remove the timber from these lands. Plainly the purpose of the instrument was, as to each 40-aere tract, that the grantee should commence to cut and remove the timber within what would be a reasonable time, to be determined. by the evidence. In determining what would be a reasonable time within which to commence cutting on one 40-acre tract, then as to what would be a reasonable time to begin cutting on another 40-acre tract, the character of the land, the situation of the timber, the difficulty of access, and many other considerations, perfectly obvious, should be taken into consideration, so as to determine correctly what would be a reasonable time within which the grantee must begin to cut as to each 40-acre tract, separately considered. And what this reasonable time is the authorities abundantly show is a matter to be determined by evidence, according to the circumstances of each particular case.

Learned counsel for appellee insist that the provision in the instrument that the right of way for railroads, tramways, dirt roads, etc., over the lands described in the instrument was to remain in full force, together with the other provision that the right of way across that property for the purpose of constructing, maintaining, and using logging railways or tram roads or dirt roads, with a right to construct, maintain, and use spur tracks or roads over and across said land continuously, shows that the grantee could commence to cut whenever it pleases, even if it be for a period of time no matter how remote. This is a plain confusing of two entirely distinct things. The right of the grantee to commence to cut the timber on each forty-acre tract is one thing; the right to maintain these railroads, tramroads, dirt roads, and spur tracks, which is entirely for the purpose of transporting the timber from the lands to the mill, is another thing, and was intended to exist continuously and to remain in force for the very reason set out in the instrument, to wit, that the grantee might not only cut the timber on these lands, but also from all lands adjacent to the above-described lands. The thought was that the grantee not only should cut and remove all the timber it could cut on each of the forty-acre tracts described in this and other kindred instruments, but that it was to have the right to keep its tramways and other roads and buildings laid down and constructed on these lands thus described in these instruments, not only until it cut the timber on these lands, but until it had cut the timber on all adjacent lands. The landlord could proceed to put his soil in cultivation, and, if he was to some extent inconvenienced, he had nevertheless in this instrument expressly granted the right to the grantee to maintain these roads until it cut all the timber from the adjacent lands, together with such timber as it could cut and remove from these lands, from the period of time from which it commenced to cut on each of these forty-acre tracts.

We have not been able to see how there could have been any serious difficulty in the construction of this instrument. Courts must look 'at the whole instrument, not at one clause. They must get the purpose from the whole instrument, and they have a right to look to the situation of the parties who made the instrument, to the subject-matter embraced in the instrument, and to all the conditions surrounding the parties executing the instrument. When this is done, as it must, of course, be done to reach the true intent of the parties, all difficulty in the construction of this instrument instantly disappears. The truth is, we have had a bad wealth of learning cited by counsel on both sides in this case, which is entirely aside from any proper construction of this particular instrument which we are now interpreting. The chief difficulty which has beset the learned counsel of appellee is in stickling about the first clause in the instrument, and the whole argument is made as if there was nothing in the instrument after the description of the land; in other words, as if this were a case where A, owning the land and the timber thereon, had conveyed to B all of the timber, without any other clause in the instrument at all. If this had been the purpose of the parties, all the rest that follows the first clause might well have been omitted; and counsel argues and treats all .that follows as superfluous.

Counsel cite Robinson v. Payne, 58 Miss., 690, a case wholly unlike this, and omit entirely to refer to Hart v. Gardiner, 74 Miss., 153 (s.c., 20 South. Rep., 877), repeatedly approved since its decision, and in which the very contention which they make here now was disallowed, and which the Bobinson-Payne case was fully considered and explained. That there may be no further confusion along this line, we repeat once more, to reaffirm emphatically, the doctrine of that case, as follows: “The fault in this reasoning is that the rule has no application when the estate intended to be granted is not actually set forth in the granting clause, in words chosen by the grantor for that purpose, but is worked out by legal implication of the intent to convey a particular estate from the use of certain statutory words, and where, in addition, the estate intended to be granted is clearly shown elsewhere in the deed. The rule which required the habendum to yield to the granting clause, when repugnant intents are expressed in the two as to the estate to be conveyed, is applicable only where the intents are both the actual intents of the grantor, and not intents arising by implication of law from the use of certain words, to which the statute has affixed a certan meaning. The distinction is between the actual intent of the grantor expressed in terms of his own, selected to declare that intent, and an intent merely implied by law. And this distinction is abundantly sustained by authority. ... To the same effect see 3 Washb. Real Prop., p. 466 et seq., especially section 61.; Martind. Conv., sec. 111; Devl. Deeds, secs. 213, 214, 216. And see, specially, the very striking case of Henderson v. Mack, 82 Ky., 379, where the court says: ‘The proper end of all rules of construction is to effect the intention of the parties to the instrument; and the intention of a grantor in a deed is to govern when it can be ascertained, equally as in the case of other instruments. In arriving at it, the entire paper must be considered! Blackstone says that the construction ‘must be made upon the entire deed, and not entirely upon disjointed parts of it.’ I¿ clauses are repugnant to each other, they must be reconciled, if possible; and the intent, and not the words, is the principal thing to be regarded.” The technical rules of construction are not to be resorted to, when the meaning of the party is plain and obvious. As was well said in Robinson v. Payne, 58 Miss., 692: ‘The intention must prevail.’ ” This last-quoted clause shows that the Robinson-Payne case announces the same rule we announced in Gardiner v. Hart, to wit: “The intention must prevail.”

In view of these authorities, and many others which might be multiplied, it is obvious that the special covenant that we have heretofore considered limits the first clause in the instrument, and that the real purpose here was to give to the grantee the right only to all such timber as had been theretofore described, which the grantee might cut and remove from each forty acres within one year from the time it commenced to cut on each forty acres separately dealt with. The timber thereafter growing meant the timber thereafter growing within the life of the contract; that is, growing from the date of the instrument to the end of one year from the time appellee began to cut. The opposite construction results in the utterly incongruous holding that the grantee had the right to commence to cut whenever it pleased, even if that was forever, and then, after it commenced cutting, one year more; in other words, that it had forever, plus one year besides forever, in which to commence to cut. Assuredly, it ought to need no authority to show that this construction cannot be possibly maintained. This instrument by its own terms, by this special covenant hereinbefore referred to, shows beyond the possibility of doubt that the grantee must begin to cut the timber within a reasonable time; treating each forty-acre tract separately. It is not a case, as we have stated before, of a plain grant by A., who owned the lands and the timber, to be of the timber, but nothing more; but it is a case of a grant by A to B of the timber, with an express direction that h© shall remove the timber, and that he is entitled only to what he shall cut and remove within one year from the time he begins to cut, which means, of course, that he must begin to cut within a reasonable time. This view of the terms of the instrument is abundantly supported by many cases selected with great care by the learned counsel for appellants.

We refer to only a few, which we regard as conclusive of the subject: Hoit v. Stratton Mills, 54 N. H., 109 (20 Am. Rep., 119); Mathews v. Mulvey, 38 Minn., 342 (37 N. W., 794); Pease v. Gibson, 6 Me., 81; Ferguson v. Arthur, 128 Mich., 297 (87 N. W., 259). And most especially see the case of McRae v. Stillwell, 111 Ga., 68 (36 S. E., 604; 55 L. R. A., 513), in which case the instrument, like the instrument .here, contained provisions from which it was plain that the intent was that the cutting should commence within a reasonable time; in other words, that case, like this, falls within the class of cases in which the instrument, by express provision, shows the intent to have been that the cutting should commence within a reasonable time. See, also, Perkins v. Peterson, 110 Ga., 29 (35 S. E., 319). The case referred to of Pease v. Gibson,, 6 Me., 81, contains language so pertinent that we quote it to approve it: “To admit the construction given by the defendant’s counsel, and consider such a permission as a sale of the trees, to be cut and carried away at the good pleasure' of the purchaser, and without any reference to the limitation, in point of time, specified in the permit, would be highly injurious in its consequence. It would deprive the owner of the land of the privilege of cultivating it and rendering it productive, thus occasioning public inconvenience and injury; and, in fact, it would amount to an indefinite permission. The purchaser, on this principle, might by gradually cutting the trees and clearing them away, make room for a succeeding growth, and, before he had removed the trees standing on the land at the time of receiving such license of sale, others would grow to a sufficient size to be useful and valuable, and then the owner of the land would be completely deprived of all use of it. Principles leading to such consequences as we have mentioned cannot receive the sanction of the court.”

Indeed, we have ourselves already foreshadowed the principle we have announced in Gex v. Dill, 86 Miss., 10 (s.c., 38 South. Rep., 193), wherein it was held that: “Where a turpentine lease omitted to give date when the rights it granted should begin and end, but work was commenced thereunder within two years, a contention that the lease was-void, as tending to create a perpetuity, w-as untenable.” And it was so held to be untenable in the following language of the court: “We cannot support the position that the lease is void, as tending to create perpetuity, in that it does not give the date when the right it grants shall begin and end. We have examined all the authorities cited in the briefs of counsel. Hnder them we think that the most that can be claimed, if it can be, is that tire work must commence in a reasonable time, and in this case we think it did commence in a reasonable time. This record does not show a lapse of thirteen years, as in cases cited, before the beginning, but not quite two years. This conclusion does not make it necessary to decide whether or not in this case the delay, to be unreasonable, must pass the period of the statute of limitation.” It is true that the precise point was not squarely decided, but the reasoning of the court, as it seems to us, clearly foreshadowed the principle which we now announce.

It results from these vieius that this toas a case for an answer, and not a demurrer; and it follows that the decree of the court below, sustaining the demurrer and dismissing complainants’ bill, is reversed, the demurrer overruled, and the cause remanded, to be proceeded with in accordance with this opinion — - answer to be filed within thirty days from the filing of the mandate in the court below.