Williams v. Batson , 186 Miss. 248 ( 1939 )

As stated in the controlling opinion, appellee did not cut or remove any of the timber within the period of ten years, but has paid all the taxes on the land and timber since the date of the deed; and it is admitted that he expects to pay, is able to pay, and will pay, all such taxes so long as the timber or any part thereof shall remain uncut by him or his assigns.

The contention of appellee, sustained by the trial court, is that he has as many years in the future, and even in the far future, within which to cut or remove the timber as he shall for each successive year pay the taxes, and if this is to be called a right exercisable in perpetuity, he has it for himself and his assigns.

Two contentions are made by appellant: First, that appellee's right to cut any timber on the land, after the ten-year period, specifically mentioned in the timber deed, was conditioned upon his beginning the cutting upon some part thereof within said ten years; and, second, if mistaken in the first, that appellee has only a reasonable period of time to cut and remove after the specifically mentioned ten years.

Appellant relies chiefly on Hall v. Eastman, Gardiner Co,89 Miss. 588, 43 So. 2, 119 Am. St. Rep. 709, and appellee upon Nichols v. Day, 128 Miss. 756, 91 So. 451. We are of the opinion that neither of these cases, nor any other of the cases in our own reports, are sufficiently similar in decisive point of fact to furnish a solution of the questions presented by the particular deed now before us, and that we must recur to the general principles which have been established in the law for the interpretation of such contracts — the rules in respect to the interpretation of deeds being the same as are applicable to other contracts. 16 Am. Jur. 528.

First among these principles is that every word or clause in the contract must be given a meaning of appreciable weight and importance, if reasonably possible, or as otherwise stated, no word or cause is to be stricken therefrom so long as it is reasonably possible to construe the contract so as to retain therein the questioned word or clause. Harris v. Townsend,101 Miss. 590, 58 So. 529; Shapleigh Hardware Co. v. Spiro, 141 Miss. 38,106 So. 209, 44 A.L.R. 393; Southern Railway Co. v. Anderson Fuller, 158 Miss. 543, 130 So. 743; Dunn v. Stratton, 160 Miss. 1, 7, 133 So. 140; 12 Am. Jur. pp. 774, 775; 16 Am. Jur. pp. 534, 5.

The contention of appellee runs, as we think, squarely into conflict with the above-stated principle, for his contention would require that the clause "within the period of ten years" be stricken from the contract, and as effectively stricken as if it had never been written therein by the parties.

Another of the established principles of interpretation, of equal or even of more importance than the one above stated, is that the court shall not rewrite the contract for the parties by interpolating or inserting therein additional words or clauses which the parties did not themselves insert. Some of the language of the courts is so broad as to say that, except as to obvious clerical errors or omissions, this can never be done under any circumstances, and particularly that a specific provision may not be rewritten by interpolations upon it or additions to it in order to make it harmonize with broader general provisions. See the cases cited in 13 C.J. p. 535, under Sec. 496, Contracts, and 16 Am. Jur. p. 533, Sec. 169. Mr. Williston says on this subject, 2 Williston on Contracts, Sec. 619, p. 1200: "The freedom of construction permissible is, however, limited by the principle that unexpressed intention is of no legal effect. The reason for interpolating, omitting or disregarding specific words is that in the remainder of the writing an intention is expressed which makes it evident that the particular words were erroneously used." It is not necessary for us here to say that, except as to clerical errors, interpolations may never be made, for the case now before us does not require any such extreme resort.

The first contention of appellant that appellee's right to cut any timber on the land after the ten-year period specifically mentioned in the timber deed, was conditioned upon his beginning the cutting on some part thereof within said ten years, runs squarely into conflict with the established principle stated in the next preceding paragraph in that it would require the court to interpolate or write into the contract an additional clause, next following the first quoted paragraph of the timber deed, in words as follows: "And provided that there shall be no such extended period unless the grantee shall have begun to cut the timber on some part of said lands within the said first period of ten years" — and this the Court cannot do. But if the Court should interpolate such an additional clause or provision, it would have to interpolate further and say what part of the cutting must be done within ten years — would have to say whether a greater part or a substantial part, or would simply use the language which the parties themselves have used in the succeeding paragraph, "a part of said timber." Using the quoted words, the grantee could cut 40 acres within the ten years, and then have an unlimited time, upon the payment of the annual taxes, to cut the remainder of 580 acres. To use a homely illustration, this would allow the tail of the cutting of a small part within a short time to wag the dog of the greater part throughout a long time. And if it be said that the remaining greater part must then be cut within a reasonable time after the ten-year period, this would lead back into the same main pathway which we think the course of decision should pursue from the beginning, without the practically useless detour by way of an interpolation requiring a cutting of some part within ten years.

Still another established principle of construction of no less dignity than the principles already stated is that where words or a clause of a particular or special import is followed by, or is used in direct connection with, other words or clauses of a broader or more general import, the court will neither delete the particular or special clause nor write into the contract another particular or special clause, but rather will ameliorate or restrain the general or broader clause or clauses so as to bring the latter into a reasonable relation of harmony to and with the associated particular or special clause in question. This rule has been variously stated, A.L.I. Rest. Contracts, Sec. 236(c); 12 Am. Jur. p. 779, Sec. 244; 16 Am. Jur. pp. 537, 538; 2 Williston on Contracts, pp. 1200, 1201; but when the substance is extracted from all these various statements, it is found that it may be outlined as has above been briefly expressed in this paragraph. The rule is not available, or rather disappears, of course, when the parties have expressly made it clear that it is their intention that the general or broader words or clauses are to overbear or dominantly control the particular words, as was the case for instance in Copiah Hardware Co. v. Johnson,123 Miss. 624, 86 So. 369, and as the controlling opinion maintains is the case here; but we think such cannot safely be said to be the case in the instrument now before us — and here arises the real difference, and the only real difference between our view and that of the controlling opinion.

It follows from what has been said that in our view the second contention of appellant is approximately the correct contention; and that the proper construction of the contract before us is that appellee had the right under the specific or primary period of ten years mentioned in the deed to cut and remove the timber within that special or primary ten-year period, and has such an additional period, under the general or broader subsequent language used as bears a reasonable relation to the said specific ten-year period, this to be determined under all the competent and material facts and circumstances to be shown to the court, and under familiar rules applicable to this particular subject, as often set forth in the written opinions of this and other courts — this additional period being conditioned, as the parties have expressly provided in the contract, upon the payment annually by appellee of all taxes during said extended period.

We are of the opinion, therefore, that the Court should not have made the injunction perpetual against appellant, but should have adjudged either (1) some definite period of reasonable extension beyond the ten years — that period to have some just and reasonable relation to the said primary period — during which the injunction would operate, or (2) should issue the injunction to remain in force until the further order of the court, jurisdiction being retained for such further order, or (3) should make some other such decree as will preserve the rights of both parties throughout the reasonable extension period.

McGehee, J., and Ethridge, P.J., concur herein.