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son Bros. v. Branham (Va.) supra; A conveyance of certain trees speHendrickson v. Lyons (1922) 121 cifically described and number given Wash. 632, 209 Pac. 1095.

in the conveyance, which recites that According to the court in Wilson all of the trees were, during certain Bros. v. Branham (Va.) supra, it is months, counted and branded with incident to the rights of the owner of the brand of the purchaser, describthe fee and in line with the well-es- ing it, and further reciting, “It is untablished policy which allows the derstood that the said New River free and untrammeled disposition of Lumber Company, Incorporated, has the estate that such owner may do the right to cut and remove said timwhat he will with his own, unless his ber from both said tracts at any intended disposition is contrary to time,” conveys a right in perpetuity public policy, or to some positive rule in the trees described in the conveyof law. The court further states that ance, with the right in the purchaser there is no public policy or rule of to enter upon the land and cut and law which forbids the owner of remove the trees at its pleasure or standing timber to convey an abso- convenience. New River Lumber Co. lute estate in such timber with an un- v. Blue Ridge Lumber Co. (1922) 146 limited time for removal. The whole Tenn. 181, 240 S. W. 763. The court matter rests in the intention of the held that it had the right to look to party.

the surrounding circumstances in inA grant of timber for a period of terpreting the deed. From these it years, with the perpetual right in the appeared that the vendors had pregrantees to an annual extension of pared a deed, giving the purchaser the time to remove, after the expira- three years in which to cut and retion of the ten years, upon the pay

move the timber. Upon presentation ment of certain sum, is valid.

of this deed to the purchaser, it was Nichols v. Day (1922) 128 Miss. 756, refused, and the deed as above de91 So. 451.

scribed was made and delivered. The rule of some of the earlier A conveyance of timber standcases, referred to at page 43 of the ing on rough, rocky ground very earlier annotation, that an agreement

little of which was suitable for giving the purchaser a perpetual right farming, and the chief value of to enter upon land and remove which consisted in the standing timtimber therefrom is so unreasonable ber, for which there was no immein its nature that no contract will diate market owing to lack of transbe held to have this effect un- portation facilities, the timber being less it is plainly manifest that such described in the conveyance was the intention of the parties, a certain number of trees of a certain has been followed in some recent diameter, and branded with a certain cases. Livingston v. Drew Lumber letter, and the deed reciting a grant Co. (1921) 82 Fla. 508, 90 So. 466; to the purchaser, his heirs and asHendrickson v. Lyons (Wash.) supra. signs, of the right to enter on the

land “at any time,” for the purpose of b. Contract construed as grant in per

cutting, manufacturing, and removpetuity.

ing the trees, was held to convey a (Supplementing annotation in 15

perpetual interest in the trees, notA.L.R. 43.)

withstanding another provision in When a sale of standing timber the deed that the purchaser or his asconveys a right to have it remain on

signs were to have ten years from a the land in perpetuity being a ques- stipulated date in which to cut and tion of intention, it is difficult, if not remove them where there was a furimpossible, to lay down any general ther provision that if the purchaser test to determine the character of the or his assigns did not remove the grant or sale. In the following cases trees within the ten years, then the a grant in perpetuity was held to owners of the land should have the have been intended:

right to deaden such trees as might 31 A.L.R.-60.

as

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be standing upon such land as the scribed land, coupled with the "right, owner might clear for cultivation. privilege, and license irrevocable to Wilson Bros. V. Branham (1921) 131 enter, re-enter, and pass over, across, Va. 364, 109 S. E. 189. The court here or through the said lands, or any part points out that, if the provision as to thereof, for the purpose of felling or the right to remove for ten years removing said timber trees," conafter the specified date were con- strued with the further provision strued literally, it would not only contained in the conveyance that the narrow down the previous grant of grantee “shall remove the said pine the right to remove "at any time,” trees off of said land within ten but would also render meaningless years from the date of this agreethe subsequent provision giving the ment, removing the said cypress when owner the right to deaden the trees, said Drew Lumber Company so desince, if the right terminated at the sires,” does not convey a perpetual expiration of the ten years, the owner right to remove the cypress lumber, of the land would be the owner of the but implies an intention of the parties trees and would have the right to that the right granted to enter on deal with them as he saw fit, without said land and cut and remove the said any provision in the contract.

cypress lumber should be exercised The decision in R. M. Cobban Realty within a reasonable time. Livingston Co. v. Donlan (1915) 51 Mont. 58, 149 v. Drew Lumber Co. (Fla.) supra. Pac. 484, discussed in the earlier an- A contract between owners of land notation on page 46, is reaffirmed in on the respective sides of a river, the recent decision of Hart v. Anacon- whereby the owner on the east side da Copper Min. Co. (1924) Mont. igreed to maintain a fence on that

222 Pac. 419, where it is stated side so as to keep stock from crossing that where landowner conveyed to the other side, and to give the growing timber with a right of way owner on the west side, his heirs and over the land for the purpose of re- assigns, a right of way to pass up such moving it, without limitation or condi- stream on the east side, across said tion, a fee-simple estate in the timber land, forever, and the owner of the passes to the grantee, not defeated by land on the west side agreed to give the latter's failure to remove the tim- the other owner "all the timber and ber.

brush that there is on the immediate

border on the west side of said stream c. Contract construed as requiring removal within a reasonable time.

as far as the above-described land

shall run along said stream,” gives 1. In general.

the owner on the east side the right (Supplementing annotation in 15 only to remove the brush and timber A.L.R. 51.)

on the land at the time of the conAs stated in the previous subdivi- tract, and this he is bound to do withsion, a conveyance of timber will not in a reasonable time. Lewison v. Axbe construed as giving a perpetual tell (1923) Iowa, —, 195 N. W. 622. right unless such an intention clearly An exception or reservation of timappears.

Timber contracts specify- ber from a conveyance of land, with ing no time for removal are ordina- the right to remove the same, rerily held to require a removal in a quires a removal within a reasonable reasonable time. Livingston v. Drew time. Hendrickson v. Lyons (1922) Lumber Co. (1921) 82 Fla, 508, 90 So. 121 Wash. 632, 209 Pac. 1095. 466; Lewison V. Axtell (1923)

The Louisiana rule discussed in Iowa, 195 N. W. 622; Hill v. Vencill the earlier note, at page 58, under (1922) 90 W. Va. 136, 111 S. E. 478. which it is necessary to have a time

A conveyance of a fee-simple estate for removal fixed by the court, when in the “pine and cypress timber trees none is fixed by the parties, is fol. over 14 inches stump measure and at lowed in Kavanaugh v. Frost-Johnson the date hereof standing and being, Lumber Co. (1921) 149 La. 972, 90 or felled and lying," upon certain de- So. 275, holding that until a time for

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removal is fixed by the parties, or by mencement of the cutting under a the court, the right to remove the tim- contract of sale specifying no time ber remains in the grantee indefi- for the commencement, but requirnitely.

ing it to be finished within a stated

time, was held to be a few months 2. Contract containing a time limit aft.

over eleven years in Cunningham v. er beginning, but none for beginning.

Atlantic Coast Lumber Corp. (1921) (Supplementing annotation in 15

117 S. C. 240, 109 S. E. 145, where it A.L.R. 60.)

appeared that the owner of the land The cutting, under a contract of

permitted the purchaser of the timsale specifying no time for the com

ber to enter upon the land in question mencement of the cutting, although

and cut and remove a part of the timrequiring it to be finished within a

ber at that time, the court holding stated time after such commence

that he thereby acquiesced in fixing ment, must be commenced within a

that time as a reasonable one in reasonable time; failure to begin the

which to commence to cut and remove cutting and removal within such

the timber. time results in the loss of the pur

In Livingston v. Drew Lumber Co. chaser's rights and a reversion to the

(Fla.) supra, a case involving a conlandowner. Cunningham v. Atlantic

veyance of pine and cypress timber Coast Lumber Corp. (1921) 117 S. C.

over 14 inches stump measure, in 240, 109 S. E. 145; Berry v. Marion

which it was provided that the purCounty Lumber Corp. (1924) S. C.

chaser should have ten years in -, 121 S. E. 794.

which to remove the pine trees, and 3. What is a reasonable time. should remove the cypress trees when (Supplementing annotation in 15 it desired, the court held that it A.L.R. 61.)

should have an additional period of As stated in the earlier annotation, ten years after the expiration of the what is a reasonable time is general

time for removing the pine, for cutly a mixed question of law and fact; ting and removing the cypress timno fixed rules can be established for

ber. ascertaining this; all the facts and As shown hereinafter, subd. IV. a, circumstances must be taken into the Arkansas courts have had before consideration. Livingston v. Drew them a number of times a contract Lumber Co. (1921) 82 Fla. 508, 90 So.

which provides that the purchaser 466; Berry v. Marion County Lumber shall cut and remove the timber as exCorp. (1924) S. C. —, 121 S. E. 794; peditiously as possible, and unless it Hill v. Vencill (1922) 90 W. Va, 136, shall be removed within a stated num111 S. E. 478.

ber of years that the purchaser shall According to the court in Living- pay taxes accruing on the land thereston v. Drew Lumber Co. (Fla.) supra,

after. Under this contract, the Arkanwhat may be regarded as a reasonable sas courts hold that the purchaser has time “should be determined, not by

not, in all events, the time stated the arbitrary will of either the grant

in which to remove the timber; that or or the grantee, but by a considera

he must proceed expeditiously. In tion of the location, nature, accessi

Southern Lumber Co. v. Hampton bility, and uses of the land and the (1924) – Ark. —, 258 S. W. 977, a timber, as well as all the other circum- case involving such a contract, in stances that attend the making of the which the time stated was twenty-one conveyance."

years, the court held that the timber Where the owner of the timber is could have been removed at least also a tenant in common in the fee, within a year or two-perhaps in one the reasonable time for the removal season. And the court refused to apof the timber does not begin to run ply the rule of Burbridge v. Arkansas until after a division of the land. Lumber Co. (1915) 118 Ark. 94, 178 Hill v. Vencill (W. Va.) supra.

S. W. 304, to the effect that in deterA reasonable time for the com- mining whether or not the purchaser

under such a deed has had time expe- A special contract was involved in ditiously to remove the timber, the Broadwell v. Walker (1921) 216 Mich. fact should be taken into considera- 210, 184 N. W. 866, in which it aption that the purchaser was operating peared that the owner of the land a mill and owned large bodies of tim- conveyed all the timber upon a cerberland, and was cutting and remov- tain described tract, "together with ing the timber in accordance with the the right to enter upon said premises settled plan of operation, and was pro- and cut and remove said timber at ceeding to remove the timber as quick- any time within three years from ly as the practical operation of that date, but not thereafter." The conplan would permit. In the Southern tract then provided, “All timber Lumber Co. Case the purchaser was thereafter remaining or being therean individual, but he assigned the con- on to revert and become the property tract to a lumber company. It not be- of the first party.” Under this coning shown as a fact that the vendor of tract it was held that the imber rethe timber knew he was going to as- maining upon the land at the end of sign it, the court treated the purchase the three-year period became the as one by an individual, and held the property of the plaintiff, the owner rule of the Burbridge Case not appli- of the land. Accordingly, he was cable.

held entitled to maintain an action 4. Effect of failure to remove.

for the value of the timber which had According to the majority rule

been cut by the purchaser after the the failure of a purchaser of tim

expiration of this time. ber under a contract construed to

(b) Doctrine that title passes subject require a removal within a reason- to be devested by failure to remove. able time, to remove the timber with

(Supplementing annotation in 15 in such reasonable time, results in

A.L.R. 75.) a termination not only of his right to enter upon the land for the pur

The court in Ward v. Hayes-Ewell

Co. (1924) 155 La. —, 98 So. 740, says poses of removal, but also a

ter

that when timber is sold separate mination of whatever rights in the

from the land and the time fixed for timber itself he may have had. Liv

its removal, it must be cut and reingston v. Drew Lumber Co. (1921)

moved within the period agreed upon 82 Fla. 508, 90 So. 466; Hill v. Vencill (1922) 90 W. Va. 136, 111 S. E.

by the parties, or fixed by the court in 478.

default of agreement; otherwise said

timber reverts to the owner of the III. Effect of failure to remove under land. contract specifying time for removal.

A conveyance

of timber upon a a. Majority rule.

tract of land with the right to remove

the same, which contained a pro1. Sale contract.

vision that all timber that might re(a) In general.

main on the land after a certain date (Supplementing annotation in 15 should, without further notice A.L.R. 70.)

motion, and by force and effect of the The great majority of courts hold conveyance, revert back and belong that the rights of the purchaser ter- to the grantors, their heirs or asminate upon his failure to remove the signs, as though it had never been timber before the expiration of the sold, and that all rights, interest, and time fixed in the contract, and revest privileges of the purchaser, succesin the owner of the land. Ackley v. sors, or assigns in any timber thereElliott (1921) 198 App. Div. 965, 190 on, not then removed, should totally N. Y. Supp. 56, affirmed without opin- cease, was held to vest in the grantee ion in (1923) 235 N. Y. 516, 139 N. E. title to the timber; but it is stated 716.

that, in order to have the benefit of See also cases cited in III. a, 1, (b) that title, it is necessary to remove and (c), infra.

the timber before the time stipulated.

or

The official headnote, however, speaks grantor to remove the trees is limof the right conferred upon the pur- ited to the period stated, and that, chaser as an “irrevocable right” to do upon the expiration of that time, his the acts contemplated in the deed. rights terminate, has been approved Bennett v. Interstate Cooperage Co. in Strunk v. Morris Run Coal Min. Co. (1921) 89 W. Va, 286, 109 S. E. 748. (1921) 271 Pa. 148, 114 Atl. 519. (c) Doctrine that sale passes to pur

3. Theory. chaser only so much as he removes

No later decisions herein. For within the time limited.

earlier cases, see annotation in 15 (Supplementing annotation in 15

A.L.R. 80.
A.L.R. 76.)
As shown in the earlier annotation,

b. Minority rule. it is the doctrine of some courts ad- (Supplementing annotation in 15 hering to the rule now under dis- A.L.R. 82.) cussion that a contract of sale of The minority rule discussed in the standing timber, by the terms of earlier note, that a sale and conveywhich the timber is to be removed ance of growing timber in which the within a specified time, passes to the purchaser is given a stated time for purchaser, or is a sale of only so removal passes an absolute title to much of the timber as is cut and re- the timber, which is not defeated by moved within the time designated, failure to remove within the time the balance remaining the property of specified, has been followed in some the vendor. This rule has been fol- recent cases in

in the jurisdictions lowed in Nichols v. Lane (1922) 192

which adhere to that rule. Hanby v. N. Y. Supp. 362.

Dominick (1921) 206 Ala. 539, 90 So.
The court in Ward v. Hayes-Ewell 287; MCGILL V. HOLMAN (reported
Co. (1924) 155 La. 98 So. 740, cites herewith) ante, 941.
with approval the decision in St. Louis

IV. Extension of time.
Cypress Co. v. Thibodaux (1907) 120
La. 834, 45 So. 742, which holds that

a. In general. the sale of timber with the right to (Supplementing annotation in 15 remove the same for a stated period is A.L.R. 85.) a conveyance of only so many of the The parties may by subsequent trees as the purchaser may cut and re- agreement extend the time for remove within the time designated. The moval, in which event the new time court, however, seems to make no dis- limit takes the place of the former tinction between this theory and the

one. Hanley v. Dominick (1921) 206 theory of reversion, for later on in the Ala. 539, 90 So. 287; Arkansaw Tradopinion it is stated that upon default ing Co. v. Southwestern Veneer Co. in removal within the time stated the

(1923) 160 Ark. 286, 254 S. W. 488. timber "reverts" to the owner of the An express agreement of extenland.

sion was held to have been shown in (d) Doctrine that sale is only a license.

Arkansaw Trading Co. v. Southwest

ern Veneer Co. (Ark.) supra, by a No later decisions herein. For earlier cases, see annotation in 15

conversation between the vendor and A.L.R. 78.

purchaser in the last year of the two

year period fixed for the removal, in 2. Exceptions and reservations in deed

which the purchaser said there was of land.

no chance to remove the timber that (Supplementing annotation in 15 year, to which the vendor replied: A.L.R. 79.)

"Probably things will be better next The doctrine discussed in the ear- year, and we will do something;" and lier annotation, that where there is a the further statement to the purreservation of trees in a sale of land, chaser: “You have paid us $6,000, with the right to remove limited to haven't you? .. I don't want a specified period, the right of the that money for nothing;" to which

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