Donworth v. Sawyer , 94 Me. 242 ( 1900 )

Haskell, J.

Trover for the conversion of certain pine, spruce and cedar logs.

The defense is:

I. That the logs were cut from common lands of the plaintiffs and defendant.

Massachusetts, in 1850, being the owner of Township 13, Range 7, westerly from the east line of the State, containing 22,040 acres, exclusive of public lots, conveyed to defendant’s predecessors ‘in title, “2000 acres of land to be selected in the East half the township .... in one or two lots; and 2000 acres from the West half of said township in lots not exceeding six in number, and all of said lots are to be laid out at right angles with the town lines and so as not to interfere with my lands now in possession of settlers.” No selection of the lots or partition of the land has been made. The residue of the township belongs to the plaintiffs. The question is, are the parties tenants in common, or is the conveyance under which defendant claims inoperative and-void?

There are cases which hold that a conveyance by one tenant in common of a specific quantity or parcel in severalty is inoperative against the co-tenants and voidable by them. One case of that sort is cited at the bar. Phillips v. Tudor, 10 Gray, 78. There, one tenant in common conveyed 64 rods from the common land, and it was held that, if the deed be valid as against all persons, except the other tenants in common, it could not take effect until the grantee had entered and made certain the parcel that he claimed to hold. So in Soutter v. Porter, 27 Maine, 405, it is held that a conveyance by one tenant in common of a part of the common property by metes and bounds, though inoperative against the co-tenants, may operate to convey the land to the grantee, when the grantor’s part of the common property shall have been set out to him or his interest comprising it.

A deed by tenants in common with others of a specific number of acres from the common lands, less than their share, is valid, and conveys a fraction of the estate. Small v. Jenkins, 16 Gray, 155; Jewett v. Foster, 14 Gray, 495; Battel v. Smith, 14 Gray, 497; Gibbs v. Swift, 12 Cush. 393.

In Brown v. Bailey, 1 Met. 254, much relied upon by the plaintiffs at the bar, a testator devised one-fifth of his real estate to a son “to be taken where he shall choose or select at its just and proportionable value.” The court held that the estate vested, with a privilege for the devisee to exercise or not at pleasure on partition.

Apply these doctrines to the deed in question. The grantor owned the whole township. It conveyed 2000 acres, not from common lands, but from lands held in severalty, of land in the east half of the township, to be selected' in one or two lots to be laid out at right angles with the town lines, and so as not to interfere with lands in possession of settlers. The manifest intention was to sell 2000 acres in the east half of the township. Had the deed said no more, the grantee would have taken his fraction of the east half of the township, in common with the grantor. Sheafe v. Wait, 30 Vt. 735; Preston v. Robinson, 24 Vt. 583. The deed does not say, to be held in common, but that is the logical, result. It must be that or nothing. The clause, “to be selected,” implies that title passed to be held in common until selected. The right of selection was not a condition precedent, but, as said in Brown v. Bailey, a right superadded, to be exercised or not at the will of the grantee upon partition, and if exercised then in lots at right angles with town lines and so not as to disturb settlers.

We think the defendant is a tenant in common with plaintiffs of the east half of the township in the proportion that 2000 acres bear to the whole acreage of that half of the township.

We also think that defendant is a tenant in common with plaintiffs of the west half of the township in the proportion that 2000 acres bear to the whole acreage of that half of the township.

We also think that the right of selection that might have been exercised by defendant, in both halves of the township, has been lost by lapse of time. It was a privilege to have been exercised within a reasonable time, and we think that has long since elapsed. The property was wild land, covered with growing timber. Portions of it may have been cut, of which defendant was entitled to her share, and it would be unfair to allow a selection to be now made from that portion uncut. That would be unequal and unjust. When no time is fixed within which an act is to be done, the law fixes a reasonable time. Weymouth v. Gile, 83 Maine, 437; Mitchell v. Abbott, 86 Maine, 338.

For the logs cut from the common lands by the defendant, to which she has no other title than as tenant in common, the plaintiffs may have damages, for the conversion of their shares therein. Wing v. Milliken, 91 Maine, 387; Wheeler v. Wheeler, 33 Maine, 347 ; Carter v. Bailey, 64 Maine, 458; Strickland v. Parker, 54 Maine, 263; Bain v. Cowing, 22 Maine, 347; Herrin v. Eaton, 13 Maine, 193.

II. That the pine and spruce trees from which the logs were cut were the property of- defendant.

In the deed from Massachusetts, before mentioned, under which defendant claims title, was the grant “of all the pine and spruce timber standing on said township .... to be taken off from time to time to suit their [grantees,] convenience.” If lots were sold for settlement, the timber was to be removed the next lumbering season after notice to grantees or their assigns of the sale, or “as soon thereafter as may be practicable.” The sale of the timber was not to retard the settlement of the country, nor were the grantees to have recourse to the grantor for any deficiency in the quantity and quality of timber estimated to be upon the township.

It is common learning that the construction to be given deeds must have relation to the time and circumstances under which they were given, and that they are ordinarily to be construed most strongly against the grantor. Field v. Huston, 21 Maine, 69. The converse rule, however, applies to grants by the sovereign power when not purely commercial and especially when they are gratuitous and are not moved by a full and adequate consideration.. Here the consideration was 117,479.96. This grant is clearly enough of pine and spruce trees standing on the land at the date of the deed, and of none other, to be removed at the convenience of the grantees or their assigns. Putnam v. Tuttle, 10 Gray, 48.

It is contended at the bar that the grant is not only limited to trees standing on the land at the date of the deed, but to pine and spruce trees then suitable for timber.- But the grant is not of trees suitable for timber. It is of “ pine and spruce timber.” Now the word “timber” should be given tbe meaning suited to the purposes of the grant apparent from the whole deed. The timber of commerce is squared sticks of wood used in building. The trees from which they were cut became known as timber trees. “ Command them that they hew me cedar trees out of Lebanon.” “I will do all they desire concerning timber of cedar and timber of fir.” So, too, stock on hand for manufacturing purposes, regardless of its size, is called timber. “ A man of Tyre, skilled to work in gold, and in silver, in brass, in iron, in stone and in timber, in purple, in blue and in fine linen and in crimson.” The statutes of the United States in encouraging the-growth of forests and prohibiting their destruction apply the word timber to all sorts of trees, young or old. So, too, under the statute of this state relative to driving logs, “pulp wood or any other wood product suitable for commerce or manufacture that may be conveniently driven to market,” is held to be included in the word timber. Bearce v. Dudley, 88 Maine, 410.

The grantor’s purpose, as expressed in the deed, was to foster the settlement of public domain, and, in furtherance of that purpose, it sold the pine and spruce in question, to be removed so that the land could the more easily be cleared. Its pm’pose was to clear the growth without regard to size, giving the grantees their own time to do so, but always fast enough to accommodate settlers. It wanted the forest cleared, not preserved; and we think, under all the circumstances, the meaning of “pine and spruce timber” was understood to be pine and spruce growth; that the word timber was not used in the sense of tiees, suitable to then make timber, but as synonymous with trees or growth. There could have been no object to give to the word a different meaning, and we think the whole grant shows the purpose to have been not to grant trees only suitable for timber, but rather trees of the bind for timber, pine and spruce, timber trees. In other words, to grant the right of lumber from the pine and spruce standing at the date of the deed, at the grantees convenience until the then existing growth should have been removed, but fast enough to not retard settlement of the lands. Any other construction would be both inconvenient and lead to controversies that might be interminable. It is well known that pine and spruce lands in the region of this township do not reproduce the same kind of growth.

Nor is this construction of the deed an unnatural or strained one. The word “timber” is given meaning to fit the sense in which it is used. It may mean “ wood suitable for building houses or ships, or for use in carpentry, joinery, etc., trees cut down and squared or capable of being squared and cut into beams, rafters, planks, boards, etc.,” or “growing trees, yielding wood suitable for constructive uses: trees generally; woods.” Cent. Diet. “I learned of lighter timber cotes to frame.” Prior. “ The straw was laid below, of chips and fere wood was the second row, the third of greens and timber newly felled.” Dryden. “ We take from every tree lop, bark, and part of the timber, and tho’ we leave it with a root thus hackt, the air will drink the sap.” Shakespeare. The prairie is bare of timber. They sought shelter in the timber, meaning woods. The acts of congress encourage the planting of timber and protect it, meaning small trees.

In this State and some others the conveyance of growing trees to remain alive upon the land and to be cut in the future, is a conveyance of an interest in land, that may nourish and support the growth conveyed. The trees become chattels only when severed from the soil. Until then they are a part of it. Dunn v. Burleigh, 62 Maine, 24; Hoit v. Stratton Mills, 54 N. H. 109; Howe v. Batchelder, 49 N. H. 204; Plumer v. Prescott, 43 N. H. 277; Kinysley v. Holbrook, 45 N. H. 314; Olmstead v. Niles, 7 N. H. 522; Putney v. Day, 6 N. H. 430; Heflin v. Bingham, 56 Ala. 566; Clap v. Draper, 4 Mass. 266; White v. Foster, 102 Mass. 375.

It is not, as before said, a strained construction to hold that ordinarily a grant of growing timber to be construed most favorably to the grantee, conveyed the growth named with its increase, until the time for removal shall have elapsed. This seems to be the view taken in Pease v. Gibson, 6 Greenl. 81, although other questions were decided, and in Howard v. Lincoln, 13 Maine, 122. Putney v. Day, 6 N. H. 430, apparently adopts it. See Knott v. Hydrick, 12 Rich. 314.

Goodwin v. Hubbard, 47 Maine, 395; Strout v. Harper, 72 Maine, 270, and Foster v. Foss, 77 Maine, 279, throw but little light upon the question, but contain nothing against it.

In McIntyre v. Barnard, 1 Sanford Ch. 52, cited with approval in Kellam v. McKinstry, 69 N. Y. 264-269, and in Lacustrine F. Co. v. Lake Guano, etc., Co., 82 N. Y. 476-482, was the grant “all the pine timber standing or being” on the land to be cut arid removed by January 1, 1841. The grant was made May 27, 1836. The court said: “The object of the grant was the sale of all the pine logs which should be taken off by January 1, 1841,” citing Pease v. Gibson and Howard v. Lincoln. The last named case was a reservation. The same rule for construction that is applicable to a grant applies to limit the reservation. It was “of all the pine timber .... above tbe size of ten inches in diameter twenty feet from the stump,” and the court held only such timber, existing at the date of the deed, was reserved. Surely that should be so, for the description was specific. All the cases cited at the bar by the plaintiffs but two uphold the same doctrine, and were cases of exceptions or reservations, or where the trees granted were specifically described either by size or adaptability for certain uses. These are the cases. Nash v. Drisco, 51 Maine, 417, was a sale of timber and bark down as small as ten inches, and the court held cord-wood was not conveyed and that the sale of timber excluded trees unsuitable for any purpose but fire wood. Babka v. Eldred, 47 Wis. 189, held that under a statute giving a lien on logs and timber, a lien did not attach to lath cut therefrom. Shiffer v. Broadhead, 126 Pa. St. 260, held that a grant of standing pine and hemlock timber was timber by a local custom to ten inches in diameter at top end of twelve-foot log, first cut from the butt. Boults v. Mitchell, 15 Pa. St. 364, was a reservation of timber suitable for sawing and rafting. Warren v. Short, 119 N. C. 39, was a sale of timber twelve inches in diameter at the stump. Robinson v. Gee, 4 Ired. 186, was a reservation of “saw-mill pine timber on the land standing or being, or which may hereafter stand or be, on the said land;” and it was held that the grantee was not liable in trespass for the cutting of pine saplings. Whitted v. Smith, 2 Jones, 36, was an exception of “all the pine timber that will square one foot,” and it was held that only such timber as existed at the date of the deed was excepted. Irwin v. Patchen, 164 Pa. St. 51, is confused and of doubtful authority. It seems to hold that a parol reservation of standing timber is limited to timber merchantable at the time. Andrews v. Wade, (Pa.) is not reported in the State reports, but is found in 6 Atl. Rep. 48, a per curiam opinion. It was a reservation of “all the pine and hemlock timber growing on said lands,” and the court held that only trees of suitable size for use at the date of the reservation were included in it. This is the only case directly in point cited to sustain the plaintiff’s contention. Carter v. Williams, 106 Ga. 280, was a lease of “all the round timber or timber suitable for turpentine purposes,” and it was held that only such timber standing at the date of the lease passed.

There is another Pennsylvania case where the grantor reserved “all the pine timber” with the right to cut and remove it for twelve years. The court say: “The limitation upon the right of entry was a limitation upon the exception itself. It was a reservation of the timber for twelve years and no longer. After that time, the trees remaining passed with a grant of the soil to which they were attached. This is the construction placed upon such agreements in the lumber regions where they are frequent, and it accords with reason and common sense.” Saltonstall v. Little, 90 Pa. St. 422; Boisaubin v. Reed, 1 Abbt. 161. Contra, Irons v. Webb, 12 Vroom, 203.

A sale of merchantable standing timber conveys that particular timber only and at once. Haskell v. Ayers, 35 Mich. 88. Same as to saw timber, Monroe v. Bowen, 26 Mich. 522.

The precise question, here at issue, does not seem to have been very much considered by' tbe courts, and therefore it must be decided by applying the most reasonable construction to the deed of the parties. Where, as in this state, the grant of growing trees to remain affixed to the soil or the exception of them from the grant, is an interest in land, it is logical to consider the trees, and the right in the soil, and the growth of them as a unit and inseparable. Their owner is entitled to their increase. The grant of trees, or' timber, or particular kinds of timber trees, should be held a grant of the growth, standing at the time of the grant. If the grant limit itself by size of tree, age, or adaptability for specified uses, then of course the particular described tree would pass and none other. But where there is no limitation of that character, and the grant is of standing timber, to be taken off in the future, the common understanding would be that the grantee might cut timber from the lot until the present growth, suitable for the purpose, shall have been exhausted, or until the right to cut shall have expired by limitation, either express or implied.

That must have been the purpose of the grant in question. Massachusetts said to the grantees, for a valuable consideration, you may “log” fot pine and spruce on the township at your pleasure, but fast enough to clear the land for settlers as they may come.

But it is said that the grant was limited to the grantees and could not be°conveyed by them. We do not think so. The grant was of an interest in land, to be held by the grantees, “their heirs and assigns, to their use and behoof forever.” The cases already cited sustain this view. See Baxter v. Mattox, 106 Ga. 854.

Our conclusion is that the plaintiffs and defendant are tenants in common of the township, and that plaintiffs may recover the value of their shares in the cedar logs cut by defendant, and also in any pine and spruce so cut that were not standing at the time of conveyance to Jewett and March in 1850.

Defendant defaulted.