son Bros. v. Branham (Va.) supra; Hendrickson v. Lyons v. Lyons (1922) 121 Wash. 632, 209 Pac. 1095.

According to the court in Wilson Bros. v. Branham (Va.) supra, it is incident to the rights of the owner of the fee and in line with the well-established policy which allows the free and untrammeled disposition of the estate that such owner may do what he will with his own, unless his intended disposition is contrary to public policy, or to some positive rule of law. The court further states that there is no public policy or rule of law which forbids the owner of standing timber to convey an absolute estate in such timber with an unlimited time for removal. The whole matter rests in the intention of the party.

A grant of timber for a period of years, with the perpetual right in the grantees to an annual extension of the time to remove, after the expiration of the ten years, upon the payment of a certain sum, is valid. Nichols v. Day (1922) 128 Miss. 756, 91 So. 451.

The rule of some of the earlier cases, referred to at page 43 of the earlier annotation, that an agreement giving the purchaser a perpetual right to enter upon land and remove timber therefrom is so unreasonable in its nature that no contract will be held to have this effect unless it is plainly manifest that such was the intention of the parties, has been followed in some recent cases. Livingston v. Drew Lumber Co. (1921) 82 Fla. 508, 90 So. 466; Hendrickson v. Lyons (Wash.) supra. b. Contract construed as grant in perpetuity.

(Supplementing annotation in 15 A.L.R. 43.)

When a sale of standing timber conveys a right to have it remain on the land in perpetuity being a question of intention, it is difficult, if not impossible, to lay down any general test to determine the character of the grant or sale. In the following cases a grant in perpetuity was held to have been intended:

A conveyance of certain trees specifically described and number given in the conveyance, which recites that all of the trees were, during certain months, counted and branded with the brand of the purchaser, describing it, and further reciting, "It is understood that the said New River Lumber Company, Incorporated, has the right to cut and remove said timber from both said tracts at any time," conveys a right in perpetuity in the trees described in the conveyance, with the right in the purchaser to enter upon the land and cut and remove the trees at its pleasure or convenience. New River Lumber Co. v. Blue Ridge Lumber Co. (1922) 146 Tenn. 181, 240 S. W. 763. The court held that it had the right to look to the surrounding circumstances in interpreting the deed. From these it appeared that the vendors had prepared a deed, giving the purchaser three years in which to cut and remove the timber. Upon presentation of this deed to the purchaser, it was refused, and the deed as above described was made and delivered.

A conveyance of timber standing on rough, rocky ground very little of which was suitable for farming, farming, and the chief value of which consisted in the standing timber, for which there was no immediate market owing to lack of transportation facilities, the timber being described in the conveyance as a certain number of trees of a certain diameter, and branded with a certain letter, and the deed reciting a grant to the purchaser, his heirs and assigns, of the right to enter on the land "at any time," for the purpose of cutting, manufacturing, and removing the trees, was held to convey a perpetual interest in the trees, notwithstanding another provision in the deed that the purchaser or his assigns were to have ten years from a stipulated date in which to cut and remove them where there was a further provision that if the purchaser or his assigns did not remove the trees within the ten years, then the owners of the land should have the right to deaden such trees as might

con

be standing upon such land as the owner might clear for cultivation. Wilson Bros. v. Branham (1921) 131 Va. 364, 109 S. E. 189. The court here points out that, if the provision as to the right to remove for ten years after the specified date were strued literally, it would not only narrow down the previous grant of the right to remove "at any time," but would also render meaningless the subsequent provision giving the owner the right to deaden the trees, since, if the right terminated at the expiration of the ten years, the owner of the land would be the owner of the trees and would have the right to deal with them as he saw fit, without any provision in the contract.

The decision in R. M. Cobban Realty Co. v. Donlan (1915) 51 Mont. 58, 149 Pac. 484, discussed in the earlier annotation on page 46, is reaffirmed in the recent decision of Hart v. Anaconda Copper Min. Co. (1924) Mont. —, 222 Pac. 419, where it is stated that where a landowner conveyed growing timber with a right of way over the land for the purpose of removing it, without limitation or condition, a fee-simple estate in the timber passes to the grantee, not defeated by the latter's failure to remove the timber.

c. Contract construed as requiring removal within a reasonable time.

1. In general.

scribed land, coupled with the "right, privilege, and license irrevocable to enter, re-enter, and pass over, across, or through the said lands, or any part thereof, for the purpose of felling or removing said timber trees," construed with the further provision contained in the conveyance that the grantee "shall remove the said pine trees off of said land within ten years from the date of this agreement, removing the said cypress when said Drew Lumber Company so desires," does not convey a perpetual right to remove the cypress lumber, but implies an intention of the parties that the right granted to enter on said land and cut and remove the said cypress lumber should be exercised within a reasonable time. Livingston v. Drew Lumber Co. (Fla.) supra.

A contract between owners of land on the respective sides of a river, whereby the owner on the east side agreed to maintain a fence on that side so as to keep stock from crossing to the other side, and to give the owner on the west side, his heirs and assigns, a right of way to pass up such stream on the east side, across said land, forever, and the owner of the land on the west side agreed to give the other owner "all the timber and brush that there is on the immediate border on the west side of said stream as far as the above-described land shall run along said stream," gives the owner on the east side the right

As stated in the previous subdivision, a conveyance of timber will not be construed as giving a perpetual right unless such an intention clearly appears. Timber contracts specifying no time for removal are ordinarily held to require a removal in a reasonable time. Livingston v. Drew Lumber Co. (1921) 82 Fla. 508, 90 So. 466; Lewison V. Axtell (1923) Iowa,, 195 N. W. 622; Hill v. Vencill (1922) 90 W. Va. 136, 111 S. E. 478.

A conveyance of a fee-simple estate in the "pine and cypress timber trees over 14 inches stump measure and at the date hereof standing and being, or felled and lying," upon certain de

on the land at the time of the contract, and this he is bound to do within a reasonable time. Lewison v. Axtell (1923) — Iowa, 195 N. W. 622. An exception or reservation of timber from a conveyance of land, with the right to remove the same, requires a removal within a reasonable time. Hendrickson v. Lyons (1922) 121 Wash. 632, 209 Pac. 1095.

The Louisiana rule discussed in the earlier note, at page 58, under which it is necessary to have a time for removal fixed by the court, when none is fixed by the parties, is followed in Kavanaugh v. Frost-Johnson Lumber Co. (1921) 149 La. 972, 90 So. 275, holding that until a time for

removal is fixed by the parties, or by the court, the right to remove the timber remains in the grantee indefinitely.

2. Contract containing a time limit after beginning, but none for beginning. (Supplementing annotation in 15 A.L.R. 60.)

The cutting, under a contract of sale specifying no time for the commencement of the cutting, although requiring it to be finished within a stated time after such commencement, must be commenced within a reasonable time; failure to begin the cutting and removal within such time results in the loss of the purchaser's rights and a reversion to the landowner. Cunningham v. Atlantic Coast Lumber Corp. (1921) 117 S. C. 240, 109 S. E. 145; Berry v. Marion County Lumber Corp. (1924) - S. C. 121 S. E. 794.

3. What is a reasonable time.

(Supplementing annotation in 15 A.L.R. 61.)

As stated in the earlier annotation, what is a reasonable time is generally a mixed question of law and fact; no fixed rules can be established for ascertaining this; all the facts and circumstances must be taken into consideration. Livingston v. Drew Lumber Co. (1921) 82 Fla. 508, 90 So. 466; Berry v. Marion County Lumber Corp. (1924) - S. C., 121 S. E. 794; Hill v. Vencill (1922) 90 W. Va. 136, 111 S. E. 478.

According to the court in Livingston v. Drew Lumber Co. (Fla.) supra, what may be regarded as a reasonable time "should be determined, not by the arbitrary will of either the grantor or the grantee, but by a consideration of the location, nature, accessibility, and uses of the land and the timber, as well as all the other circumstances that attend the making of the conveyance."

Where the owner of the timber is also a tenant in common in the fee, the reasonable time for the removal of the timber does not begin to run until after a division of the land. Hill v. Vencill (W. Va.) supra.

A reasonable time for the com

mencement of the cutting under a contract of sale specifying no time for the commencement, but requiring it to be finished within a stated time, was held to be a few months over eleven years in Cunningham v. Atlantic Coast Lumber Corp. (1921) 117 S. C. 240, 109 S. E. 145, where it appeared that the owner of the land permitted the purchaser of the timber to enter upon the land in question and cut and remove a part of the timber at that time, the court holding that he thereby acquiesced in fixing that time as a reasonable one in which to commence to cut and remove the timber.

In Livingston v. Drew Lumber Co. (Fla.) supra, a case involving a conveyance of pine and cypress timber over 14 inches stump measure, in which it was provided that the purchaser should have ten years in which to remove the pine trees, and should remove the cypress trees when it desired, the court held that it should have an additional period of ten years after the expiration of the time for removing the pine, for cutting and removing the cypress timber.

As shown hereinafter, subd. IV. a, the Arkansas courts have had before them a number of times a contract which provides that the purchaser shall cut and remove the timber as expeditiously as possible, and unless it shall be removed within a stated number of years that the purchaser shall pay taxes accruing on the land thereafter. Under this contract, the Arkansas courts hold that the purchaser has not, in all events, the time stated in which to remove the timber; that he must proceed expeditiously. In Southern Lumber Co. v. Hampton (1924) — Ark., 258 S. W. 977, a case involving such a contract, in which the time stated was twenty-one years, the court held that the timber could have been removed at least within a year or two-perhaps in one season. And the court refused to apply the rule of Burbridge v. Arkansas Lumber Co. (1915) 118 Ark. 94, 178 S. W. 304, to the effect that in determining whether or not the purchaser

under such a deed has had time expeditiously to remove the timber, the fact should be taken into consideration that the purchaser was operating a mill and owned large bodies of timberland, and was cutting and removing the timber in accordance with the settled plan of operation, and was proceeding to remove the timber as quickly as the practical operation of that plan would permit. In the Southern Lumber Co. Case the purchaser was an individual, but he assigned the contract to a lumber company. It not being shown as a fact that the vendor of the timber knew he was going to assign it, the court treated the purchase as one by an individual, and held the rule of the Burbridge Case not applicable.

4. Effect of failure to remove. According to the majority rule the failure of a purchaser of timber under a contract construed to require a removal within a reasonable time, to remove the timber within such reasonable time, results in a termination not only of his right to enter upon the land for the purposes of removal, but also a termination of whatever rights in the timber itself he may have had. Livingston v. Drew Lumber Co. (1921) 82 Fla. 508, 90 So. 466; Hill v. Vencill (1922) 90 W. Va. 136, 111 S. E. 478.

III. Effect of failure to remove under contract specifying time for removal.

a. Majority rule.

1. Sale contract.

(a) In general. (Supplementing annotation in 15 A.L.R. 70.)

The great majority of courts hold. that the rights of the purchaser terminate upon his failure to remove the timber before the expiration of the time fixed in the contract, and revest in the owner of the land. Ackley v. Elliott (1921) 198 App. Div. 965, 190 N. Y. Supp. 56, affirmed without opinion in (1923) 235 N. Y. 516, 139 N. E. 716.

See also cases cited in III. a, 1, (b) and (c), infra.

A special contract was involved in Broadwell v. Walker (1921) 216 Mich. 210, 184 N. W. 866, in which it appeared that the owner of the land conveyed all the timber upon a certain described tract, "together with the right to enter upon said premises and cut and remove said timber at any time within three years from date, but not thereafter." The contract then provided, "All timber thereafter remaining or being thereon to revert and become the property of the first party." Under this contract it was held that the timber remaining upon the land at the end of the three-year period became the property of the plaintiff, the owner of the land. Accordingly, he was held entitled to maintain an action for the value of the timber which had been cut by the purchaser after the expiration of this time.

(b) Doctrine that title passes subject to be devested by failure to remove. (Supplementing annotation in 15 A.L.R. 75.)

The court in Ward v. Hayes-Ewell Co. (1924) 155 La., 98 So. 740, says that when timber is sold separate from the land and the time fixed for its removal, it must be cut and removed within the period agreed upon by the parties, or fixed by the court in default of agreement; otherwise said timber reverts to the owner of the land.

A conveyance of timber upon a tract of land with the right to remove the same, which contained a provision that all timber that might remain on the land after a certain date should, without further notice or motion, and by force and effect of the conveyance, revert back and belong to the grantors, their heirs or assigns, as though it had never been sold, and that all rights, interest, and privileges of the purchaser, successors, or assigns in any timber thereon, not then removed, should totally cease, was held to vest in the grantee title to the timber; but it is stated that, in order to have the benefit of that title, it is necessary to remove the timber before the time stipulated.

The official headnote, however, speaks of the right conferred upon the purchaser as an "irrevocable right" to do the acts contemplated in the deed. Bennett v. Interstate Cooperage Co. (1921) 89 W. Va. 286, 109 S. E. 748.

(c) Doctrine that sale passes to purchaser only so much as he removes within the time limited.

(Supplementing annotation in 15 A.L.R. 76.)

As shown in the earlier annotation, it is the doctrine of some courts adhering to the rule now under discussion that a contract of sale of standing timber, by the terms of which the timber is to be removed within a specified time, passes to the purchaser, or is a sale of only so much of the timber as is cut and removed within the time designated, the balance remaining the property of the vendor. This rule has been followed in Nichols v. Lane (1922) 192 N. Y. Supp. 362.

The court in Ward v. Hayes-Ewell Co. (1924) 155 La. 98 So. 740, cites with approval the decision in St. Louis Cypress Co. v. Thibodaux (1907) 120 La. 834, 45 So. 742, which holds that the sale of timber with the right to remove the same for a stated period is a conveyance of only so many of the trees as the purchaser may cut and remove within the time designated. The court, however, seems to make no distinction between this theory and the theory of reversion, for later on in the opinion it is stated that upon default in removal within the time stated the timber "reverts" to the owner of the land.

(d) Doctrine that sale is only a license.

No later decisions herein. For earlier cases, see annotation in 15 A.L.R. 78.

2. Exceptions and reservations in deed of land.

(Supplementing annotation in 15 A.L.R. 79.)

The doctrine discussed in the earlier annotation, that where there is a reservation of trees in a sale of land, with the right to remove limited to a specified period, the right of the

grantor to remove the trees is limited to the period stated, and that, upon the expiration of that time, his rights terminate, has been approved in Strunk v. Morris Run Coal Min. Co. (1921) 271 Pa. 148, 114 Atl. 519. 3. Theory.

No later decisions herein. For earlier cases, see annotation in 15 A.L.R. 80.

b. Minority rule. (Supplementing annotation in 15 A.L.R. 82.)

The minority rule discussed in the earlier note, that a sale and conveyance of growing timber in which the purchaser is given a stated time for removal passes an absolute title to the timber, which is not defeated by failure to remove within the time specified, has been followed in some recent cases in the jurisdictions which adhere to that rule. Hanby v. Dominick (1921) 206 Ala. 539, 90 So. 287; MCGILL V. HOLMAN (reported herewith) ante, 941.

IV. Extension of time.

a. In general. (Supplementing annotation in 15 A.L.R. 85.)

The parties may by subsequent agreement extend the time for removal, in which event the new time limit takes the place of the former one. Hanley v. Dominick (1921) 206 Ala. 539, 90 So. 287; Arkansaw Trading Co. v. Southwestern Veneer Co. (1923) 160 Ark. 286, 254 S. W. 488.

An express agreement of extension was held to have been shown in Arkansaw Trading Co. v. Southwestern Veneer Co. (Ark.) supra, by a conversation between the vendor and purchaser in the last year of the twoyear period fixed for the removal, in which the purchaser said there was no chance to remove the timber that year, to which the vendor replied: "Probably things will be better next year, and we will do something;" and the further statement to the purchaser: "You have paid us $6,000, haven't you? . . . I don't want that money for nothing;" to which