(dissenting)—"If the intent of the parties is to retain the cutting rights in the grantor as an individual without regard to subsequent conveyances of the fee, the deed must affirmatively so provide." So ends the majority opinion. Thus, the timber rights may be severed from the land if apt words are used.
In this instance, the majority decides that the words contained in the 1934 conveyance to Lawrence Layman, "The said grantees . . . further agree, that any rights thereunder shall cease on the 15th day of March, 1974, and that any timber not so removed on said date shall belong to said grantors," are not sufficient "to retain the cutting rights in *915the grantor as an individual." Lawrence Layman quit-claimed his interest in the property back to D. M. Layman and wife in 1949, and the D. M. Laymans conveyed to their sons in 1967 by quitclaim deed.
By failing to give any content to the language in the 1934 conveyance, the court confers upon J. L. Ledgett and wife a windfall in excess of $100,000. In 1955, the Ledgetts acquired the "SE 1/4 (Land Only) of Section 34, Township 6 N., Range 15,'E.W.M., containing 160 acres, more or less" by a treasurer's deed from Klickitat County reciting a consideration of $160. Presumably, their taxes thereafter on "land only" were based on that value, for the taxes on the timber growing on the land had been and continued to be paid by the Laymans.
The Laymans paid the taxes, yet did not cut the timber prior to March 15, 1974. Obviously, they believed that the timber conveyances had been sufficient to reserve to them the right to remove the timber from the "land only". This court holds they were mistaken; after March 15, 1974, they have nothing, and the Ledgetts who began cutting the timber on that date, have everything. That result does not appeal to me as being equitable, nor is it necessary in light of Leuthold v. Davis, 56 Wn.2d 710, 713, 355 P.2d 6 (1960). There, in a factual situation similar to this case, we held that a deed stating the grantor could remove timber "'at any time that shall be convenient'" separated the right of timber removal from the interest in the land until the timber was cut.
In my view, the language in the 1934 conveyance sufficiently evidences the Laymans' intention to personally retain in themselves as grantors, " cutting rights", to use the majority's term. When the conveyance was recorded, the language therein was notice to the world that the timber, or the right to harvest the same, belonged to Lawrence Layman for 40 years, and any that was not harvested belonged to D. M. Layman. In other words, until removed, D. M. Layman retained an interest in the timber; call it "cutting rights" if you will.
*916That reservation "any timber not so removed . . . shall belong to said grantors" clearly establishes the intention that the right to harvest the timber was reserved in D. M. Layman, as an individual. To hold now that the Ledgetts, by purchasing "land only" acquired the timber after March 15, 1974, violates the basic tenet that the clear intention of the parties should control.
I dissent.
Wright, C.J., and Rosellini and Brachtenbach, JJ., concur with Hicks, J.
Petition for rehearing denied May 26, 1978.