(dissenting).
I regret my inability to accept the findings of fact and the application of the law reached by the author of the majority opinion. In this suit plaintiff alleges that the defendant, over his protest, about the month of July, 1951, cut and removed timber from the plaintiff’s land. He further alleges the moral bad faith of the defendant, and that as a consequence the defendant is liable to him for the converted value of the logs without allowances and deductions for the cost and expense of manufacturing same. In the alternative he contends that if the defendant was merely in legal bad faith that the plaintiff should recover judgment for the full manufactured value of the logs less the cost and expense of converting the same into the manufactured product; and in the further alternative, that should the defendant be neither in moral nor legal bad faith, then in that event the plaintiff should recover for the stumpage value of the logs so cut and removed from his land. He also seeks damages in the amount of $500 for the destruction of fences surrounding his property and also the amount of $30 expended by him for the payment of services of a timber cruiser employed to estimate the amount of the timber cut.
The defendant opposed the suit on the ground that it was the owner of the timber at the time it was cut and removed by virtue of a timber deed executed by plaintiff in its favor. It further alleges that it was to have two years from the date of the contract to cut and remove the timber, but that if at any time after the date of the contract high water prevented it from do*475ing so that it would have an additional one year; that during the years 1949 and 1950 the plaintiff’s land was covered by an overflow of high water which prevented the removal of said timber; that though some of the timber was removed in the months of August, September and October of 1950 that operations had to be abandoned because of existing high water. It further alleges that under the provisions of the timber contract executed on October 14, 1948 that the rights granted therein were in full force and effect in July, 1951, and that consequently it was the owner of all timber standing and lying on the land with the corresponding right to cut and remove the same.
Upon these issues the suit went to trial. The district judge gave judgment in favor of the plaintiff for the stumpage value of the timber in the amount of $1,001.97; the sum of $240 for damages to the fences; and for the further sum of $30 for the cost of having the timber estimated.
The timber contract executed between the parties is dated October 14, 1948, and the pertinent provisions therein show that the defendant was to have two years to cut and remove the timber from plaintiff’s land. Then follows the proviso: “And in event of high water after this time Martin Timber Company is to get additional one year’s time.” It appears from the record that the greater portion of the timber was cut and removed during the month of July, 1951, or approximately eight months after the two-year period of the contract had expired.
It appears from the uncontradicted testimony of the plaintiff that he consented to a clause in the deed providing that if during the two years’ term of the contract the defendant was unable to remove the timber from the land because of existing high water, that the defendant would have an additional year in which to do so. The words in the clause standing alone are meaningless. But when taken in context with the preceding language of the contract wherein it is stated that the defendant is given two years in which to cut and remove all of said timber, this clause can have but one objective meaning. Undoubtedly the words “after this time” conclusively mean from the date that the contract became effective, that is, October 14, 1948. It is manifest that, taking the clause as written with the language preceding, it can only mean that if there existed any overflow or high water during the period of two years which would have prevented the cutting and removal of this timber within the stated primary term, then the defendant enjoyed the right of so doing during the period of one additional year, that is, from October 14, 1950 to October 14, 1951. I am fully supported in this view wherein in defendant’s answer under Article 12, it alleged: “Defendant shows that he, Floyd McCarty (defendant’s agent), went to see plaintiff regarding the details *477of the contract for the cutting and removing the timber off of the land and it was agreed by Lawson that Martin Timber Company was to have two years in which to cut and remove the timber, and if at any time after the date of the contract high water prevented them from cutting and removing the timber they were granted an additional one year’s time; that according to this agreement the contract was prepared and presented to him for his signature * * (Italics mine.)
It also appears from the record that plaintiff in his testimony stated that it was mutually agreed that if the defendant was prevented by high water and was unable to remove the timber because of high water during the two-year term of the contract, that he wanted them “to have sufficient time to remove the timber.” Hence it is evident that this was the intention of the parties and I am in full accord with this conclusion as reached by the trial judge.
However, the author of the majority opinion treats this evidence and the conclusions to be drawn therefrom as being immaterial, for the reason that the very wording of the clause granting defendant an additional year within which to remove the timber “in event of high water after this time” is clear and unambiguous, and we cannot go beyond it with the view of seeking the intention of the parties.
I am not in accord with this finding. The language of this clause, when taken in context with the language preceding means what it says, and the interpretation and construction to be drawn therefrom is not only within the purview of the words used but is the construction which was placed thereon by plaintiff in his testimony and the contents of defendant’s answer given in that regard, supra.
Such timber contracts are most common in the timber areas of our State. These agreements contemplate that a certain fixed time is given the purchaser of timber to remove the same from the land, but when that is rendered impossible as a result of high water conditions or other unforeseen causes, then and in that event the timber purchaser is afforded a gratuitous period of time to enjoy the benefits of his contract. Howl ever, the period of high water, that is, whether high water covers an area of land for a week, a month or a year is incidental. The controlling factor is the prevention of exercising the rights granted. Hence, if an anticipated and existing cause prevents the fulfillment of the rights purchased, then it follows that the extended time becomes operative and in force. To say that high water at any time during the two-year period of the contract, whether it covers the land for a day, month or year, is sufficient to extend the contract for an additional one year, as the majority opinion would have it, violates the meaning and tenor of the language used therein and to which I cannot subscribe.
*479Therefore, the remaining question before us is, did the defendant have sufficient time during the two-year term of the timber contract to remove the timber from the plaintiff’s land or was it prevented from so doing as a result of high water?
The record discloses that Black Lake is a source of the annual overflow in that particular area. There is in evidence, introduced by the defendant itself, the testimony of Ernest J. Taylor, the hydraulic engineer with the geological survey, wherein he testifies that the channel of Black Lake starts overflowing only when the gauge height measures 6.4 feet. I need not enter into a detailed review of his testimony, but the conclusions reached by him reflect that for the two-year period from October 14, 1948 through October 14, 1950 there was a total of 361 days, or approximately one-half of the two-year limit that the gauge level at Black Lake was far below the overflow point of 6.4 feet, and that the area of land surrounding said lake, including plaintiff’s land, was dry and not under water during that period of time.
Furthermore, the question arises is how long did it actually take to remove the timber when it was actually removed: One Jack Crane, an expert timber man, testified that the timber could have been cut and removed from the land in its entirety within a period not. exceeding three, weeks, and that with -a good operator would require only half of that time.
It also appears from the record that this timber contract was prepared by one Ellis Martin, the agent of defendant company. It is shown that plaintiff did not participate in its preparation. Hence, it is well recognized that an instrument is to be most strictly construed against the party who prepared it. St. Landry State Bank v. Meyers, 52 La.Ann. 1769, 28 So. 136. See also Ernest A. Carrere’s Sons v. Rumore, La.App., 52 So.2d 57; Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72, 125 A.L.R. 1075, and Texas Company v. Crais, La.App., 155 So. 405.
I am unalterably led to conclude, as shown by the record, that the defendant company had a large amount of “short term timber contracts” and because of this dilemma postponed, with a tinge of procrastination, the cutting of plaintiff’s timber; and that possibly when the two-year time limit was nearing its end and it was confronted with unseasonable weather, thus forcing it to take refuge under the additional one-year clause of the contract, a right which, under my appreciation of the facts and the law applicable, did not exist. This was not the fault of plaintiff.
I respectfully dissent.