dissenting: The plaintiffs executed and delivered to the defendant a timber deed conveying certain standing timber on their lands. The agreed price was $20,000.00, which the defendant paid. The timber deed conveyed all timber upon the land measuring 10 inches or more at the stump 12 inches from the ground, and all laps, tops and slabs of the timber cut by the defendant of the size above specified. The timber of the size described and conveyed by the timber deed consisted of (1) timber suitable for saw timber, as pine, gum, oak and cypress, and (2) timber suitable for pulpwood. The defendant maintained two separate crews of men: one to cut and remove saw timber, and another to cut and remove pulpwood and laps, tops and slabs.
The paragraph in the timber deed, upon which plaintiffs base their action, does not require that all the timber sold must be cut in one continuous operation. Nor does it provide that when one kind of timber conveyed is cut, the defendant may not afterwards within the five-year period, cut the other kinds of timber conveyed. Under the deed the defendant had a perfect right to cut the saw timber conveyed, to move out, and two or three years later to come back and cut and remove the pulpwood of the size conveyed in the deed, provided that it was cut within the five-year period.
This Court said in Hardison v. Lumber Co., 136 N.C. 173, 48 S.E. 588: “There are no words to restrict the purchaser to a continuous cutting. Had the parties so intended, they should have so contracted. It may be inconvenient to the plaintiff to have the purchaser enter a second time and cut down young trees, incidentally, in making his roads, but the seller should have foreseen and provided for this in making his contract.”
In 54 C.J.S., Logs and Logging, p. 698, it is said: “Ordinarily the cutting need not be continuous to comply with a contract to cut and remove within a specified term of years.”
The timber deed was dated 18 September 1951. The defendant first cut and removed the saw timber, which work ended, according to the *8plaintiff’s evidence, in “the summer or real early fall of 1952.” The crew for cutting the saw timber left the land, and several months later the pulpwood crew went in and cut and removed the “cat-faced” and crooked trees, not suitable for saw timber, but of use as pulpwood, which pulpwood was conveyed in its deed. The cutting of pulpwood was finished in March 1953. Thus, the entire cutting and removing of trees by defendant was completed within 18 months after the execution and delivery of the timber deed, although, according to the timber deed, the defendant had five years after 18 September 1951 to cut and remove the timber it had bought.
There is no allegation in the complaint that the defendant cut and removed any tree from this land that was not of the size described and conveyed in the timber deed. The real controversy is whether the defendant had violated provision (g) of the timber deed by returning and cutting pulpwood after having cut and removed pine, gum, oak and cypress saw timber. Under the deed the defendant had such a right, because the pulpwood timber was part of the timber conveyed to it, for which it paid $20,000.00.
The majority opinion relies upon the case of Davis v. Frazier, 150 N.C. 447, 64 S.E. 200. In that case there was evidence tending to show that the grantees entered the land under a timber deed to them, placed their mills, built shanties and constructed the necessary roads for the purpose, and having cut-over all the land included in the contract, removed their mills, machinery, etc., except the shanties which they sold; and that after this was done the defendant, claiming the right to do so, had entered on the land and cut the timber and ties and committed the spoil and injury for which the plaintiff sought redress. It did not clearly appear from the testimony that the defendant entered as assignee under this deed; but the Court assumed this to be true. The contract expressly provided that the parties of the second part shall not have the right to cut-over the lands a second time for timber. The Court said: “If the evidence of I. H. Davis, above set out, and other of like tenor, should be accepted by the jury, and it should be established that the land described in the deed had been once entirely cut-over or that a distinct and definite portion of the land had been once cut-over, then the right of the grantees, or persons claiming under them, to cut and remove timber, as to all or the stated portion of said land, by the express provision of the contract, would cease and determine, and any further cutting would amount to an actionable wrong.” Under the facts of that case, I accept the above as a statement of sound law. (Emphasis mine.)
In American Creosote Works v. Campbell, 172 La. 866; 136 So. 659, the Court said: “A person who purchases timber under- contract like *9the one under consideration, that is, certain designated timber with right of removal within a specified period, may exercise his right and remove the timber from a part of the tract and cease operations for a time, without losing the right to remove his timber from the remaining portion of the land. But, if he goes over the entire tract and removes therefrom, the timber which he purchased, he cannot later go upon the cut-over land and renew operations, even though the time given for removal has not expired.” (Emphasis added.)
In the instant case there is neither allegation, nor proof, that defendant had not purchased the pulpwood it cut; and there is no evidence tending to show it cut this purchased pulpwood with its first crew. The defendant had purchased the pulpwood of the size described in the deed, and had the right to go back and cut all that it had purchased at a price of $20,000.00.
This is the second headnote in Cammack v. R-L Lumber Co. (Court of Civil Appeals of Texas), 258 S.W. 488: “Under timber deed conveying the merchantable timber, upon certain land, giving grantees 8 years in which to cut and remove the timber, and providing ‘that, if said land should be cut over and timber removed therefrom at any time before the expiration of said 8 years ... all the timber remaining on said land shall revert back to’ grantor, and that ‘this contract shall cease to operate and be of no force whatever,’ grantees were not required to cut the different kinds of merchantable timber at one continuous cutting, and removal of merchantable timber of a certain kind, did not terminate grantees’ rights during the 8 years to cut and to- remove merchantable timber of other kinds, but merely prevented a second cutting of the same kind of timber.” In its opinion the Court said: “The contract does not provide that all the timber sold should be cut at one continuous cutting, nor that, when one kind of timber was cut, unless all the other kinds were cut at the same time, they could not be cut afterwards. It is without dispute that no pine nor ash nor gum nor hickory nor cypress was cut, and yet all of those that were merchantable were sold, and appellant received the cash therefor. That interpretation of contracts should be given as will carry out the intention of the parties, and if it be that the clause under consideration is of doubtful meaning, or is susceptible of being construed either as contended by appellant or by appellee, in such case the construction most favorable to the grantee must be given. We do not think it clear and certain that the parties intended that if any timber should be cut and removed before the expiration of the time limit, or that if just one kind of the merchantable timber sold should be cut arid removed, that all of the other kinds of timber sold remaining upon the land, although the time limit for reinoval had not expired, was forfeited urider the contract. In such case *10the rule is well settled that the doubt should be resolved in favor of the grantee.”
In Smith v. Jasper County Lumber Co. (Court of Civil Appeals of Texas), 46 S.W. 2d 430, the Court said: “From the evidence, supra, it appears that defendant in error at different times entered upon the land and cut some timber, but it is without dispute that there was never a general cutting of all the timber conveyed, or of all the kinds of merchantable timber sold. The cuttings were for special purposes to secure and preserve certain of the timbers and not a general cutting over of the land. It is not questioned but that much, several million feet, of the timber sold still remains on the land, and the time limit for its removal has not expired. We think it plain that plaintiffs in error sold and intended for the purchaser to have all the merchantable timber — of the various kinds — situated on the land, and that the purchaser, or his assigns, should have fifteen years, if necessary, in which to cut and remove said timber, and that the clause in the conveyance providing that, when the owner of the timber had cut over and abandoned the lands one time, all the remaining timber should revert to the grantors or their heirs or assigns, was intended to prevent the purchaser of the timber going on the land and cutting the timber and then holding the timber rights for a number of years, and, before the expiration of the time limit, going back and again cutting timber that had grown to be merchantable since the first cutting. We do not think the words ‘cut over and abandoned said land one time,’ or the other expression in the conveyance, ‘after the entry upon said land and the cutting and removal of said timber therefrom, all right, title and interest of the grantee shall revert to the grantors,’ meant that when one kind of timber, or a portion of one kind of timber, or a special grade of any of said timber, only was cut, unless all the other kinds of timber or the whole of the merchantable timber on the land were cut at the same time, that the right to cut same within the time limit named in the contract was lost, but that, when the timber sold (pine and various kinds of hardwood) was cut and removed, then the land would be ‘cut over’ and the right exhausted. Cammack v. R-L Lumber Co. (Tex. Civ. App.) 258 S.W. 488, 490 (writ refused).”
In 54 C.J.S., Logs and Logging, pp. 698-699, it is said: “It has been held that the buyer may not after going over the entire tract and removing the timber which he has purchased, subsequently renew logging operations on the cut-over land, even though the time given for removal has not expired, especially where the contract provides that cutting shall be continued until completed, and the land then released to the seller. However, the grantee does not surrender his right to resume the cutting of timber within the time limited where he ceased *11operations in the expectation of a compromise purchase of the land, which was never made, or left substantial tracts of timber untouched.” (Emphasis mine).
The plaintiffs do not allege in their complaint that the defendant had, in the first cutting, cut and removed all the timber' it had purchased. They merely allege: “That the defendant cut-over the lands described in the said timber deed” and that the defendant re-entered the land and cut and removed pulpwood and saw timber.
In my opinion, the plaintiffs have completely failed to show by evidence that the defendant had cut and removed all the timber it had purchased, at the time it moved in and cut and removed pulpwood, laps, tops and slabs. The plaintiffs’ evidence simply shows that the defendant cut and removed saw timber, and then after a lapse of from 4 to 10 months returned, cut and removed the pulpwood of the size and type described in its deed, and cut and removed the tops, laps and slabs — all of which it had bought and had a right to do under its deed. If there were any allegations and evidence tending to show that the defendant had cut and removed all the timber it had purchased of the size described and conveyed in the timber deed and then moved out, and returned to cut again, I would readily concede that it would be a case for the jury. But, in my judgment, there is neither allegation nor proof of such facts.
It is well settled law in this State that, if the language of the deed is doubtful, it will be construed most favorably to the grantee. McKay v. Cameron, 231 N.C. 658, 58 S.E. 2d 638; Sheets v. Walsh, 217 N.C. 32, 6 S.E. 2d 817; Benton v. Lumber Co., 195 N.C. 363, 142 S.E. 229; Outlaw v. Gray, 163 N.C. 325, 79 S.E. 676. See also: 16 Am. Jur., Deeds, Sec. 165.
In my opinion, the judgment of nonsuit entered below was correct, and I vote to affirm.