Patterson v. Graham , 164 Pa. 234 ( 1894 )

Opinion by

Mb. Justice Dean,

The plaintiffs sued defendants in trespass for cutting timber on their land. The land, in quantity about 750 acres, some years before was owned by Ellen V. Patterson, who devised it to her husband, John Patterson, for his own and their children’s use, during his life, with power to him of testamentary disposition. At the death of testatrix in 1865, he took possession under the will. On 3d of August, 1872, for himself, and as trustee for his children, he made an agreement with G. M. Graham, one of defendants, to sell to him all the white oak and pine timber on the land; Graham agreed to pay therefor the sum of $3,000, in three equal annual payments, commencing on 1st of April, 1873. It was further agreed that if there was built, within eight miles of the land, a railroad station, before Graham commenced sawing, or during the time he was sawing, then he was to pay fifty per cent additional to the contract price, either for the whole or that portion delivered to the station ; Graham to have all needful privileges on the land for successful operations in the lumber business. It was further stipulated that the contract was not to prevent Patterson from selling the land, subject to Graham’s rights. No time was fixed for the removal of the timber. Graham paid the full amount of the purchase money on and before March 1, 1876. About the fall of 1878, he put up a sawmill on the land, and commenced cutting the timber, and continued until the spring of 1881, when, having manufactured about all the saw timber, he moved his mill away and ceased operations. In 1886, J ohn Patterson died, and by his will and sundry conveyances by and among his children, the title to the land became vested in these plaintiffs. In the summer of 1892, about twenty years after the agreement was made, and eleven years after he had stopped cutting and had taken away his mill, G. M. Graham, with his son Joseph, again put their mill on the land, and cut and manufactured about 350,000 feet of oak and pine. For this, the plaintiffs brought suit. They claimed that, under the agreement and evidence, there was a sale of the timber with a reasonable time for removal; that, after abandoning the land in 1881, defendants’ right to cut and remove timber ceased within a reasonable time; that eleven years was not an assertion of right within a reasonable time, and this was a question for the court to decide. The defendants contended, that the rule that where there is a grant of the land, reserving timber, the grantor mus't remove the timber within a reasonable time, upon notice, does not apply where there is an absolute sale of the timber without limit as to time. That in case of such absolute sale, the right to remove is indefinite as to time.

The court submitted the evidence to the jury, instructing them that, if they found that Graham had not abandoned the land when he removed his mill, but nevertheless, on his return, had cut and removed oak and pine timber not of sufficient size for sawing in 1872, when the agreement was made, plaintiffs were entitled to recover the value of this timber, but were not entitled to recover for that which was saw timber in 1872. And further, that it was the duty of Patterson to notify Graham to remove _ the timber within a reasonable time if he desired to terminate his right, and, as no such notice had been given, Graham had a right to re-enter and cut such timber as was fit for sawing at the date of the agreement in 1872. The verdict was for plaintiffs for $157.32. As plaintiffs’ evidence tended to show the timber was worth from $2.00 to $4.00 per thousand stumpage, the jury evidently found that only a small part of that taken was of a growth which had become large enough for sawing after the agreement was made in 1872.

From the judgment entered on the verdict, the plaintiffs appeal, assigning for error the instruction of the court in the general charge and answers to points.

No time was expressly fixed in the agreement, within which the timber was to be cut and removed. But the intention óf the parties may be ascertained from other stipulations in the agreement and facts dehors the agreement, such as the situation of the parties, and the circumstances surrounding them at the time they entered into it. Patterson was a farmer, Graham was a lumber manufacturer and dealer in lumber. No provision is made as to payment of taxes by the purchaser on any interest in the land; provision is made for increased price, should a railroad station be built within eight miles of the land, either before Graham commenced sawing, or before he had finished. Patterson grants privileges on his land to Graham necessary to carry on the lumber manufacturing business. It is very clear that Patterson sold and Graham bought, with the intention, on part of both, that the timber was to be manufactured into lumber. That is, it was not bought as land to be held indefinitely, or to be sold as land when it suited the purchaser. A purchaser may buy growing timber, with no intention of manufacturing it into lumber, and hold it, just as he might buy and hold the land, if he so frame his contract. In such case, he could remove it when he chose, and the vendor would have no right to quicken him by notice. But here the parties intended, not a sale and purchase of the timber, to be held as land, but a sale for purpose of manufacture within a reasonable time; not an immediate severance, but not one indefinitely remote; and this is evidenced by the agreement and their surroundings. That they so understood it, is also shown by their subsequent conduct. In about five years, Graham moved his sawmill upon the land, and commenced cutting and removing the timber; he continued manufacturing nearly three years, severing nearly all then suitable for lumber; then removed his mill, and for eleven years did not go back or exercise a single act indicating any claim to the timber. Undoubtedl}', in a contract for the sale of timber, where the parties intend a severance, and no time is fixed within which it is to be removed, the law implies that the grantee will remove it within a reasonable time. And the grantor can quicken action by notice. If, after such notice, the grantee neglects for an unreasonable time to exercise his right, he loses it. The question, then, of what is a reasonable time, is not determined by the will of the grantor, or alone by the fact of notice, but by all the circumstances. The attention of the grantee having been directed to the right and claim of the grantor, the grantee is the one to move ; and if he be indifferent and passive then, for an unreasonable time, the entire interest in the land revests in the grantor.

What is a reasonable time for the exercise of the right after notice, depends on circumstances, such as quantity of timber, character of it, facilities for manufacturing and marketing it; and, in case of dispute, this becomes a question for adjudication by the court. To this effect are Boults v. Mitchell, 15 Pa. 371; Shiffer v. Broadhead, 126 Pa. 260, and all the authorities. But the facts of this case are, in an essential particular, different from those in the cases cited. If, after the purchase in 1872, Graham had ináde no move to cut and take away the timber, and Patterson had notified him to remove it, and Graham had delayed in commencing work, or had been slow in finishing it, the question of “ reasonable time ” would have become one for determination, under the authorities, by the court, or by the court and jury at the trial.

But no such question arises here; for there will not be implied two reasonable distinct times, eleven years apart. The timber was sold to- be removed within a reasonable time ; between five and six years after the sale, and three after the last payment, Graham moved his mill upon the land, and commenced manufacturing and removing the timber; he continued his operations for three years. Both parties, by their conduct, deemed this a reasonable time in which to commence operations, as it evidently was. Then Graham, after cutting apparently all worth cutting under his purchase, stopped, took away his mill, and nothing is heard of any claim by him for eleven years. In the meantime, there have grown into merchantable lumber, trees which were valueless when he made his contract; these, with others that he had neglected to fell in his first operation, he cuts and removes, claiming the right to do so under his contract made twenty years before. At the date of this second entry, the grantor hits been in his grave for several years; the land has passed to his children and their grantees. This second entry of Graham, under the undisputed facts, was clearly a trespass. Within a reasonable time, in 1878, he entered upon the land, and exercised the right granted him under the agreement; at the end of three years, by a distinct, unequivocal act, stopping operations and removing his mill, he relinquished to the grantor the full possession of his land; and this intention is emphasized by his silence for eleven years. Nothing less than distinct notice to the grantor, when he removed his mill, that he intended to return within a reasonable time to remove timber still standing, could have served to weaken the significance of this act, and it is doubtful if that would have been sufficient, in view of his long inaction. But no notice bj' the grantor to him, after such conduct, was required. He had a right to assume that Graham had taken all the timber that passed to him as the consideration of the contract, and that he had no further claim. After he is through with his present operation, he has as much right to return, when another eleven years’ growth has made more timber valuable, as to return now after an abandonment eleven years ago.

We think, on the undisputed facts, the plaintiffs were entitled to recover the value of the timber ctit. The measure of damages, in view of the circumstances, was correctly stated by the court.

The plaintiffs’ fourth point should have been affirmed without qualification, and the assignment of error in this particular is sustained. This, and the opinion herewith filed, necessarily disposes of the whole case.

The judgment is reversed, and a v. f. d. n. awarded.