Opinion
No. 41035.
February 16, 1959.
1. Licenses — parol grant of right of entry on land — a revocable privilege and not an estate in realty.
There may be a parol grant of the right of entry on land, such as a mere license, conferring a revocable privilege and not an estate in realty.
2. Timber — parol right of entry to remove timber — a mere license — title to timber does not vest in licensee until it has been severed from land.
A parol right of entry to remove timber is a mere license under which title to timber does not pass to or vest in licensee until it has been severed from the land.
3. Timber — license to enter upon land to cut and remove timber — how created.
A license to enter upon land and cut and remove timber may be given in writing, as well as by parol, and may arise from a so-called contract which is void or unenforceable under the statute of frauds, or from an instrument which for any reason is inoperative to convey or pass title.
4. Licenses — license to enter upon land to cut and remove timber — revocable — timber severed during life of license becomes personal property of licensee.
A license to enter on land and cut timber is revocable at any time, but the timber severed from the soil during the life of the license becomes personal property of the licensee.
5. Licenses — oral permit to enter upon land to cut and remove timber — consideration not necessary to validity of.
Consideration is not necessary to the validity of an oral permit to enter upon land and cut and remove timber.
6. Licenses — oral permit to enter upon land to cut and remove timber — not assignable without consent of licensor.
An oral license to enter upon land to cut and remove timber is not assignable without the consent, express or implied, of the licensor.
7. Licenses — oral permit to enter upon land to cut and remove timber — landowner's acts equivalent to precedent authority to his licensee's assignment.
Landowner's acts, in making oral statements and in signing written instrument, constituting subsequent approval or ratification of his licensee's assignment to another of license to enter upon land and cut and remove timber, were equivalent to precedent authority to the assignment.
8. Timber — licenses — written instrument executed by landowner created revocable license to enter upon land to cut and remove timber though land involved not described therein.
Written instrument wherein landowner stated that he gave another permission to trespass on his land and to cut timber validly created a revocable license in the other to enter upon and cut and remove the timber, irrespective of the fact that it did not describe the land involved.
9. Timber — licenses — landowner's written instrument sufficient to create revocable license to enter upon land to cut and remove timber, and to constitute ratification of licensee's prior assignment of parol license.
Landowner's written instrument wherein he stated he gave permission to another to trespass on his land, to cut timber thereon, was sufficient to create revocable license in the other to enter land, cut and remove timber, and, as well, to constitute ratification of such person's prior assignment of parol license or sufficient to estop landowner from protesting the assignment, though the land was not described in the instrument.
10. Frauds, statute of — contract for license to enter land not within provisions of, relating to contracts for sale of interests in land.
Contract for license to enter land is not within provision of statute of frauds relating to contracts for sale of interests in land. Sec. 264, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Tallahatchie County, R.E. JACKSON, Chancellor.
Breland Whitten, Sumner, for appellant.
I. A land description in a deed or contract, which contains a patent ambiguity, cannot be aided by parol testimony. Haughton v. Sartor, 71 Miss. 357, 15 So. 71; Anno. 68 A.L.R. 4.
II. A parol gift of real property is void. Smith v. Taylor, 183 Miss. 542, 184 So. 423.
III. A license to use lands is good only to those in whose favor or to those whose use it is given. Agnew v. Jones, 74 Miss. 347, 23 So. 25.
IV. A license with reference to real property is personal to the licensee and is not transferable to a third party. 33 Am. Jur., Sec. 98 p. 403; Anno. 130 A.L.R. 1253.
V. In contracts to sell real property, the same must be in writing and the consideration therefor must be stated in the writing. Sturm v. Dent, 141 Miss. 648, 107 So. 277.
J.H. Caldwell, Charleston, for appellee.
I. Cited and discussed the following authorities: American Alliance Insurance Co. v. Alford, 229 Miss. 855, 92 So.2d 191; Currie v. Natchez, J. C.R. Co., 61 Miss. 725; Dixie Pine Products v. Breland, 205 Miss. 610, 39 So.2d 265; Hicks v. Mississippi Lbr. Co., 95 Miss. 353, 48 So.2d 624; Hudson v. Landers, 215 Miss. 447, 61 So.2d 312; Jones v. Hickson, 204 Miss. 373, 37 So.2d 625; Morehead v. Morehead, 222 Miss. 161, 75 So.2d 453; Sansing v. Thomas, 205 Miss. 618, 38 So.2d 706; Wall v. Wall, 177 Miss. 743, 171 So. 675.
This case involves an oral license to enter upon land and to cut and remove timber; and a subsequent approval or ratification of an assignment of the license.
In 1956 appellant Towles owned 120 acres of low, cutover land, on which was situated some small cypress and Tupelo gum timber. Towles desired to get the land cleared, so that he could put a fence around it, drain and cultivate it. He orally authorized Dahl to enter, cut the timber, and take it; Dahl was to clear the land. In this way Towles would get the land cleared free of charge. With Towles' knowledge, Dahl in June 1956 hired Tillotson to clear part of the land for cultivation. Dahl, claiming to be the owner, sold the timber he had cut to Hodges, defendant-appellee, and used at least part of the money received from the sale to pay Tillotson for his work in clearing the land.
In August 1956, Towles learned that Hodges had bought the severed timber from Dahl. After discussing the matter with Hodges, he advised Hodges that it would be all right for him to go ahead and finish cutting the timber. At Towles' suggestion, he dictated to Hodges' daughter a written statement, for Hodges' protection:
"8/13/56
"Mr. J.A. Towles has given Lake Hodges permission to trespass on his land, Section 32, in Tallahatchie County, for 12 months and is to finish cutting the timber he is now cutton (sic) on.
"(Signed) J.A. Towles"
In September Towles insisted that Hodges either give him or pay him for some of the cypress cut from the land, and defendant refused. The cypress logs were on defendant's mill site. Apparently the land contained more cypress than Towles anticipated. He filed this suit in the Chancery Court of Tallahatchie County, seeking to reform the above instrument of August 13, 1956, so that it would provide he would receive the cypress, and then to cancel the instrument on the ground it was unenforceable under the statute of frauds. The chancellor appointed a master, who heard the testimony, and rendered a decision for defendant Hodges, on the grounds that Dahl and Hodges had revocable oral licenses to enter the land and cut the timber, and complainant had ratified them, both by his oral statements to the two licensees, and by the above-quoted written statement. The final decree approved the master's report, dismissed the bill with prejudice, and directed complainant to restore to defendant the cypress logs which had been seized under a writ of sequestration.
(Hn 1) As distinguished from a sale of growing timber, which is an interest in realty, the courts give effect to a parol grant of the right of entry. They consider it a mere license, which confers only a revocable privilege and does not pass an estate in realty. (Hn 2) This right of entry is merely a right to enter and remove the timber. Under such a license, the title to the timber does not pass to or vest in the licensee until it has been severed from the land. 34 Am. Jur., Logs and Timber, Sec. 42; 33 Am. Jur., Licenses, Secs. 91-98. Hence there is no question, in view of the nature of the right conferred, that a valid license to enter upon land and to cut and remove timber may be given by parol. Ibid., Sec. 44; 53 C.J.S., Licenses, Sec. 80; 54 C.J.S., Logs and Logging, Sec. 29.
(Hn 3) Such a license may be given in writing, as well as by parol, and may arise from a so-called contract which is void or unenforceable under the statute of frauds, or from an instrument which for any reason is inoperative to convey or pass title. Ibid. Sec. 29. Singletary v. Ginn, 153 Miss. 700, 121 So. 820 (1929); Blair v. Russell, 120 Miss. 108, 81 So. 785 (1919). (Hn 4) A license to enter on land and cut timber is revocable at any time. But the timber severed from the soil during the life of the license becomes the personal property of the licensee. 54 C.J.S., Logs and Logging, Sec. 29 (d).
The Mississippi cases have consistently recognized these principles. Dixie Pine Products v. Breland, 205 Miss. 610, 39 So.2d 265 (1949), held that a written contract which did not describe the land was unenforceable under the statute of frauds as to standing timber, but, until revoked, it was valid as a license to the logger for the cutting and removal of timber. To the same effect are numerous cases, including Sansing v. Thomas, 205 Miss. 618, 38 So.2d 706 (1949); Rowan v. Rosenblatt, 206 Miss. 259, 39 So.2d 873 (1949); Walton v. Lowrey, 74 Miss. 484, 21 So. 243 (1897); Blair v. Russell, supra; Singletary v. Ginn, supra; Hudson v. Landers, 215 Miss. 447, 61 So.2d 312 (1952); Bassett v. Stringer, 216 Miss. 766, 63 So.2d 234 (1953).
(Hn 5) Applying these principles to the present facts, Towles gave to Dahl an oral license to enter upon his lands and cut and remove the timber. In return, although a consideration is not necessary for such an oral permit, Towles was to receive the benefit of getting his land cleared for cultivation without any cost to himself. Dahl proceeded to hire Tillotson to do some of the clearing for him, and sold to Hodges some of the timber which Towles authorized him to take. Dahl then attempted to orally assign to Hodges the license from Towles. (Hn 6) Such a license is revocable by the licensor at will, and is not assignable without the consent, express or implied, of the licensor. 54 C.J.S., Logs and Logging, Sec. 29 (e); 34 Am. Jur., Logs and Timber, Sec. 49. However, Towles consented to the assignment of the license to Hodges. He did this orally by so advising Dahl and Hodges, and also in writing, by the instrument of August 13, 1956.
(Hn 7) Appellant not only expressly consented to Dahl assigning the license to Hodges, but his oral statements and the instrument he signed constituted a subsequent approval or ratification of the license as to acts which had previously been done by Hodges as licensee. This was equivalent to precedent authority. 53 C.J.S., Licenses, Sec. 80, p. 808. In Young v. Adams, 122 Miss. 1, 13, 84 So. 1 (1920), it was held that the owner who acquiesced in assignment of the rights and agreed to the assignment was estopped to assert its non-assignability.
(Hn 8) Appellant argues that the written instrument of August 13 is invalid and unenforceable because it is within the statute of frauds, and has an inadequate description of the lands affected. However, the court's decree for appellee does not undertake to enforce this instrument as a conveyance of standing timber. That writing simply represents a valid creation of a revocable license to Hodges to enter the land and to cut and remove the timber. (Hn 9) It is also sufficient to support a ratification or estoppel of appellant as to assignment of the license by Dahl to Hodges. (Hn 10) A license in real property is simply permission to enter the land and do certain acts. It gives no interest in land, and therefore a contract for a license is not within the provision of the statute of frauds relating to contracts for the sale of an interest in land. 49 Am. Jur., Statute of Frauds, Secs. 187, 188; New Orleans J G N Railroad Company v. Moye, 39 Miss. 374, 386 (1860); Hotel Markham v. Patterson, 202 Miss. 451, 458, 32 So.2d 255 (1947).
Affirmed.
Roberds, P.J., and Tall, Lee and Holmes, JJ., concur.