* Application for writ of error pending in Supreme Court. This suit was filed in the district court of Jasper county, by J. R. Chapman, against James Dearman and wife, Lettie Dearman, and Isaac Dearman, for the title and possession of all of the pine timber located on the W. A. Isaacs 160-acre survey of land in Jasper county, and for an injunction restraining the said James Dearman, Lettie Dearman, and Isaac Dearman from cutting the timber on the said land. The defendant Isaac Dearman answered by disclaimer, and the defendants James Dearman and wife, Lettie Dearman, answered denying that the plaintiff had any right to the timber located on said land, and filed a cross-action in trespass to try title for said land. Upon the trial of the case, plaintiff disclaimed any interest in the land other than the timber located upon the same, and the cross-action of the defendants was dismissed. The case was tried before the court without a jury, the court finding that the plaintiff had a deed from the defendants to the timber located on said land, but that under said deed the same should have been removed from the land within a reasonable time, which the court found to be ten years, and which time had expired. The court further found that the defendants had, previous to the filing of this suit, parted with any title which they might have had in and to the north half of said survey, and rendered judgment for the defendants against the plaintiff for all of the timber located on the south half of said survey, and dissolving the injunction which had been theretofore issued as to said south half, but rendered judgment for the plaintiff for the north half of said survey, and making perpetual the injunction restraining the defendants from cutting and removing the timber from the same. Motion for new trial was duly filed, and an amended motion, which was by the court overruled. Appeal bond was duly filed, and the cause is here presented for adjudication.
The deed under which plaintiff held, and upon the construction of which depends the decision of this case, is as follows:
"The State of Texas, County of Jasper.
"Know all men by these presents:
"That we, James Dearman and Lettie Dearman, of the county of Jasper and state aforesaid, for and in consideration of the sum of one hundred dollars to us in hand paid by T. W. House, J. H. Jones, A. J. Sherman, and J. M. Rockwell, executors of the estate of M. T. Jones, deceased, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said T. W. House, J. H. Jones, A. J. Sherman, and J. M. Rockwell, executors as aforesaid, of the county of Harris, and state of Texas all the *Page 809 pine timber now standing and growing upon the W. A. Isaacs 160-acre survey of land situated in said Jasper county, Texas, located on the east bank of the Neches river and just south of and adjoining to the Elmira Wright and Alfred Pool 160-acre pre-emptions survey, and we do hereby authorize and empower the said T. W. House, J. H. Jones, A. J. Sherman, and J. M. Rockwell, executors, as aforesaid, their heirs, assigns, and legal representatives to enter upon said land with log wagons, log carts, tramroad or in any other way they may see fit and proper and cut same and haul off said pine timber, herein conveyed, and for a more complete description of said land reference is made to the patent and field notes as follows:
"`Beginning on east ...... of Neches river stake for 1st corner a black gum 24 in. diam. brs. n. 53 W. 13 3/10 vrs. dist. Thence north 1340 vrs. intersecting N. bdy. line of Jasper county, a stake for corner a pine 10 in. dia. brs. n. 34 W. 3 2/10 vrs. dist. Thence S. 75 W. with said county line set rock marked W. for a corner a pine ...... in dia. brs. S. 21 deg. E. 5 vrs. Thence south 850 vrs. connecting survey at that point to N.E. corner of Britton Addison 160-acre tract by a line running west 440 vrs. continue south 1350 vrs. east bank of Neches river a birch 20 in. dia. brs. N. 4 6/10 vrs. Thence down the river with its meanders N. 75 deg. E. 700 vrs. to the place of beginning.'
"To have and to hold the above-described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said T. W. House, J. H. Jones, A. J. Sherman and J. M. Rockwell, their heirs and assigns, forever, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said T. W. House, J. H. Jones, A. J. Sherman, and J. M. Rockwell, their heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.
"Witness out hands at home this 17th day of December, A.D. 1898.
his
"James X Dearman.
mark
her
"Lettie X Dearman.
mark
"Signed and delivered in the presence of Green Spell.
"The State of Texas, County of Angelina.
"Before me, S. H. Townsend, a notary public in and for Angelina county, Texas, on this day personally appeared James Dearman, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
"Given under my hand and seal of office, this 19th day of December, A.D.1898.
"S. H. Townsend,
"[Seal.] Notary Public Ang. Co., Tex.
"The State of Texas, County of Angelina.
"Before me, S. H. Townsend, a notary public in and for Angelina county, Texas, on this day personally appeared Lettie Dearman, wife of James Dearman, known to me to be the person whose name is subscribed to the foregoing instrument and having been examined by me privily and apart from her husband and having the same by me fully explained to her, she, the said Lettie Dearman, acknowledged such instrument to be her act and deed and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it.
"Given under my hand and seal of office this 19th day of December, A.D.1898.
"S. H. Townsend,
"Notary Public, Ang. Co., Tex.
"Filed for Record January 12, 1899, at 9 A. M, Recorded in Deed Book U, pp. 263-265."
In the case of Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S.W. 238,123 Am. St. Rep. 803, the court had before it the construction of an instrument similar in many respects to the instant case. It was as follows:
In consideration of the sum of $100 to him paid, the deed says: "I have bargained, sold and released unto the Hope Lumber Company, heirs and assigns, forever, in fee simple, the following described tract or parcel of land, to wit: All the timber on the ninety-six acres (being the land described in plaintiff's petition). And I do hereby bind myself, heirs and legal representatives to warrant and forever defend, all and singular the title to the above-mentioned premises unto the said Hope Lumber Company, heirs and assigns, against every person or persons whomsoever lawfully claiming or to claim, the same or any part thereof."
The following questions were certified to the Supreme Court:
Question 1. Did the title of the timber not removed from the land within a reasonable time revert to the owner of the soil?
Question 2. Does the Lodwick Lumber Company owe Taylor for the value of the timber cut and removed without his consent after the expiration of a reasonable time from the making of the original contract of sale?
Both of the above questions were answered by the Supreme Court in the negative, and, rendering the opinion in that case, the court says:
"The deed unmistakably expresses the intention to convey the timber as an interest in the land on which it stood, and to convey it in fee simple and forever. It is a well-settled proposition that trees may be so conveyed or reserved in a deed as to leave in one person a title in fee in the soil generally and in another a like title in the timber. Where this is the case, there goes with the title to the timber the right to the use of the soil for its sustenance and of entry upon the land for its enjoyment. Consequently no such limitation as that the timber must be removed within a reasonable time can be imported by construction into such a grant or reservation. The very terms of the deed, when it says the title is conveyed in fee simple forever, answer any question that might otherwise arise as to the nature and duration of the right granted. 11 Coke, 85, Liford's Case; Stanley v. White, 14 East, 332; Clap v. Draper,4 Mass. 266 [3 Am.Dec. 215]; Wait v. Baldwin, 60 Mich. 623 [27 N.W. 7,1 Am. St. Rep. 551]; Howard v. Lincoln, 13 Me. 122; 1 Washburn, Real Property, 16; Knotts v. Hydrick, 12 Rich. (S.C.) 314; White v. Foster,102 Mass. 375.
"Contracts of a different character for the sale of timber as personal property have been passed upon in a great number of reported cases, and have usually been construed as giving only the right to cut and remove the timber within a time fixed by the parties, or, when the time is not expressly stipulated, within a reasonable time; and the cases cited by the Court of Civil Appeals in its opinion accompanying the certificate are of that class. There is much diversity of view among them upon questions which do not properly arise here. We have found no case which gives to such a deed as that in question a less effect than that which we have ascribed to it. In one of the cases of the class last referred to, both kinds of contracts are thus considered: `Growing timber constitutes a part of the realty, is parcel of the inheritance, and, like any other part of the estate, may be separated from the rest by express reservation or grant, so as to *Page 810 form itself a distinct inheritance. It was early so held by this court in Clap v. Draper. 4 Mass. 265 [3 Am.Dec. 215], and trespass by the grantee of such an estate against the owner of the soil was maintained, for cutting down the trees. See, also, Putnam v. Tuttle, 10 Gray 48. When so separated and made a distinct estate, it has the incidents of real property so long as it remains uncut, and the rules which governthe title and transfer of such property must apply. (Italics ours.) It is like property in mines and minerals, which may in like manner be separated from the general ownership of the soil, and become distinct estates in freehold, with all the incidents belonging to such estates. Adams v. Briggs Iron Co., 7 Cush. [Mass.] 367. It may be difficult in many cases to determine, from the terms of the contract, whether the parties intend to grant a present estate in the trees while growing, or only a right, either definite or unlimited as to time, to enter and cut, with a title to the property when it becomes a chattel.' "
The instrument under consideration, in our judgment, is a conveyance in fee simple of the timber on the land described, and the deed itself shows by its terms the nature and extent of the right conveyed.
In the case of Zimmerman v. Daffin, 149 Ala. 380, 42 So. 858,9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58, the instrument was similar to the one under consideration. The court, in the Zimmerman Case, says:
"The controversy in the case grew out of the purchase and sale of the growing pine timber on land of which Bettie Daffin was the owner at the time of the purchase and sale. On the 11th day of November, 1901, Bettie Daffin and her husband sold to the defendant appellee `all of the pine timber, 12 inches in diameter and up,' then standing and being on said lands described in the conveyance which they on the same day executed to the defendant, and which is in the following language: `State of Alabama, Clarke County. Know all men by these presents, that, for and in consideration of $960, we do grant, bargain, sell and convey unto the C. W. Zimmerman Mfg. Co. all the pine timber, 12 inches in diameter and up, now standing and being on the following described lands, situated in Clarke county, Alabama. (Omitting the description.) To have and to hold to C. W. Zimmerman Mfg. Co., their successors and assigns, forever and we do covenant with the C. W. Zimmerman Mfg. Co. that we are seised in fee of the said premises, and that we will warrant and defend the same to the said C. W. Zimmerman Mfg. Co. against the lawful claims of all persons whomsoever. For the same consideration we do grant to C. W. Zimmerman Mfg. Co. three rights of way over and across any lands owned by us for all railroads, dirt roads, and log ditches which it may desire to construct. The said C. W. Zimmerman Co. is allowed two years from this date within which to cut and remove the timber herein conveyed.' "
The court further says in the opinion:
The timber was cut on the land after the expiration of the time limit specified in the contract. "If in the present case it was the intention of the grantors that the title to the timber should revert to them on failure of the grantee to cut and remove it within the time specified, it would have been an easy matter to have expressed it in the deed; but on the face of the instrument it is at least a question of doubt as to whether the limitation is a condition subsequent of the contract of sale or a covenant, and, following the trend of the authorities above referred to in respect to the construction to be adopted when such question is doubtful, and in the light of the ruling in the case of Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465, 16 So. 632, 27 L.R.A. 434,53 Am. St. Rep. 73, we hold that the clause or paragraph in the deed in respect to the time for cutting and removing the timber is a covenant, and does not operate a forfeiture of the title on the failure of the vendee to cut and remove the timber within the time specified. Magnetic Ore Co. v. Marbury Lbr. Co., supra; Howard v. Lincoln, 13 Me. 22; Goodwin v. Hubbard, 47 Me. 595; Knotts v. Hydrick, 12 Rich. (S.C.) 314; Halstead v. Jessup, 150 Ind. 85, 49 N.E. 821."
The Supreme Court, in the cases of Houston Oil Co. of Texas v. Boykin,153 S.W. 1176, and Houston Oil Company of Texas v. Hamilton, 153 S.W. 1194, in which writs of error were granted, but which cases have not yet been decided, seems to recognize the soundness of the decision of the Zimmerman v. Daffin case, and in granting the writ of error in the case of Houston Oil Co. of Texas v. Boykin they made the following notation (copied from appellant's brief):
"We doubt the correctness of the holding of the Court of Civil Appeals that a forfeiture of the property right in the timber was warranted by the failure to remove it from the land within a reasonable time, in the absence of permission to that effect in the contract of conveyance. Quære. Is the owner of the timber not entitled to it in such a case upon proper compensation to the owner of the land for the use of the land for the purpose of getting it?"
In granting a writ of error in the case of Houston Oil Co. of Texas v. Hamilton, the court says (copied from appellant's brief):
"We are inclined to the opinion that the rights of the plaintiff in error to the timber under the conveyance did not forfeit upon its failure to remove the timber within simply a reasonable time."
We think it useless to discuss authorities further, and what we have said disposes of the case.
We hold therefore that the court erred in rendering judgment for the defendants for the timber situated on the south half of the Wm. A. Isaac 160-acre survey in Jasper county, Tex., and in holding that under the deed dated 17th day of December, 1898, James Dearman and his wife, Lettie Dearman, did not convey the fee-simple title to all of the pine timber standing and growing upon the said Isaac survey. We are of the opinion, as said before, that said deed granted the absolute fee-simple title to all the pine timber standing and growing upon the W. A. Isaac 160-acre survey.
Therefore the judgment of the lower court is reversed, and judgment is here rendered in favor of appellant for the restitution and possession of the timber located on the south half of the Wm. A. Isaac survey, and the writ of injunction heretofore issued and dissolved by the honorable district court of Jasper county, restraining the appellees from removing the timber from the said land, is made permanent.
Reversed and rendered.