Opinion
November 22, 1948.
1. Deeds — logs and logging — period within which to remove standing timber.
A timber deed granted a period of one year from its date within which to cut and remove the timber and provided also for additional time for a specified additional consideration in case grantees were unable to cut and remove the timber during the primary period. Grantees did nothing, but at the end of approximately eight months they conveyed the timber and all their rights therein to a third party, who asserting that he could not remove the timber within the remainder of the original year's time tendered the additional consideration and demanded additional time. It was not shown that it was not practicable or feasible to have removed the timber within the primary period. Held: that the demand for additional time was not maintainable.
Headnote as revised by Alexander, J.
APPEAL from the chancery court of Yalobusha County, HERBERT HOLMES, Chancellor.
Phil Stone and Kermit R. Cofer, for appellant.
The lower court erred in its construction of the two timber deeds and in dismissing the Original Bill of Complaint and in dissolving the temporary injunction, because: — (a) The court did not follow the proper rule of construction because these deeds provided for an option of extension and not an option of renewal.
It will be noted and it is quite obvious that neither of these timber deeds required any execution of any other paper in order to secure the extension of one additional year or two additional years. All that was required to obtain such extension was that the $75.00 each year be paid. So we say it is obvious that the option provided in these deeds was an option of extension and not an option of renewal and that, therefore, no notice by appellant to appellees of an intention to request such extension was necessary. All that was necessary was the payment of the $75.00. Crenshaw-Gary Lumber Company v. Norton et al, (1916), 111 Miss. 720, 72 So. 140. Economy Stores, Inc. v. Moran, (1937), 178 Miss. 62, 172 So. 865.
Now in the present case the original term within which to cut and remove the timber expired on midnight of April 5, 1947. No notice was given appellant to stop cutting until the morning of April 7, 1947, but at that time appellant's men were on the land at work on the timber.
Since it is obvious from a mere reading of the two timber deeds involved in this case that no notice of any intention to ask for an extension was necessary and since no notice was given to agents of appellant to stop cutting and removing the timber until such agents of appellant were already out on the land and at work on the timber and removing the timber and since time was not of the essence in paying the additional $75.00 (this was so held by the chancellor and from this ruling there was no Cross-appeal) then the additional year provided for in the timber deeds had already been extended before the notice to quit was given.
(b) The phrase involved and construed by the lower court did not, and does not, mean that appellant, or his predecessors in title, had to cut and remove the timber within one year just because it was physically possible to do so.
The testimony showed that in the beginning there was only about 350,000 feet of merchantable timber on this land and that appellant was cutting 8,000 to 10,000 feet a day and could have finished cutting in just a few more weeks, there being only about 125,000 feet of merchantable timber left standing on the land.
So it is obvious that it would not take more than 365 days to cut and remove this 350,000 feet of timber but would hardly take over forty-five working days. This court knows and everybody else knew that there never has been and never will be a year in Mississippi when you cannot get forty-five working days as to permit the cutting and removing of timber. Therefore we way it is absurd to contend that the word "able" in the two timber deeds referred only to the physical possibility of cutting and removing this timber within one year. Of course it was physically possible. That was obvious all along. What the phrase "if at the end of that time he has not been able to cut and remove said timber" obviously meant was that the grantees in the timber deed did not have to cut and remove the timber unless such action was feasible, having regard to the character of the timber, the quantity thereof, its location and accessibility, the general market conditions, whether or not they could cut and remove the timber without loss of profit, whether they could procure a mill to saw the timber, weather conditions, etc.
This is the rule that is almost invariably followed in simliar cases. Sumter Lumber Company, Inc. v. Skipper et al, (1938), 183 Miss. 595, 184 So. 296, at page 299 of 184 So; Orr v. Southern Lumber Company (1926) Ark.) 279 S.W. 1013, 1014; Neal v. Arkansas Lumber Company, (1927 Ark.) 295 S.W. 56, 57; Oconto Company v. Lundquist et al, (1899 Mich), 77 N.W. 950, 952; Brown v. Bishop, (1909 Me.), 74 A. 724, 729; Felder et al v. Oldham, (1945 Ga.), 35 S.E.2d 497, 500.
In view of these authorities it is obvious that these two timber deeds did not mean that the timber had to be cut and removed within one year if such were physically possible and therefore it is obvious that it was error to exclude the testimony for appellant which testimony tended to show why it had not been feasible for this small amount of timber to have been cut and removed within one year.
Stone Stone, for appellees.
Counsel for the appellant talks about construction but we have one cardinal rule about construction and let it not be forgotten. It is fully set out in a case of Sumter Lumber Company v. Skipper on page 608 of 183 Miss., and there is no place in all the books that it is set out more clearly and forcibly.
"When the language of the deed or contract is clear, definite, explicit, and harmonious in all its provisions and free from ambiguity the court looks solely to the language used in the instrument itself and will give effect to each and all its parts as written."
Now there is not any language appearing in any deed on the records in any of the eighty-two counties of the State of Mississippi any more clear, definite, explicit and harmonious throughout than the words of this deed. They are given one year and if not able to remove it in the year they could go, if done during the year, and get an extension. Well, it is idle to say that they were not able to get it out in the year and this much is conceded by my honorable opponents. The first buyer, Spier, and Edwards, and others, had twenty-five days in April and all the rest of the year up to the 3rd of December, 1946, and did not cut a piece of this timber. The appellant bought it in December 1946 and began sawing it the last of January or the first of February and got off half of it by the 5th of April. No one, of course, will say that the appellant was not held to the same line as his grantors who were the grantees in the deed from appellees.
Appellees executed a timber deed to Spier and others, dated April 5, 1946. It provided that the grantees "are hereby granted one (1) year from the date of the deed in which to cut and remove said timber, and if at the end of that time they have not been able to cut and remove said timber, they will be granted an additional year or years provided they pay us the sum of $75.00 for each additional year, not to exceed two (2) additional years."
These grantees executed their timber deed to Moore, dated December 3, 1946, containing the identical provisions above quoted, followed by the explanatory phrase "in compliance with deed to the grantors herein from Mrs. Sarah E. True and M.T. True, dated April 5, 1946 . . .".
There is no evidence that the original grantors ever attempted to cut any of the timber. Moore began cutting under his deed in January or February of the year 1947. An April 7, 1947, the Trues gave notice to Moore to cease all operations, on the ground that his privilege had expired April 5, 1947. Thereupon, Moore offered the Trues $75 for a purported extension. It was refused. Moore filed bill for injunction against the Trues to prevent cancellation of the cutting privileges. The defendants answered and filed their cross-bill praying for dismissal of the original bill, and for damages on account of injury to the lands, and solicitors' fees. The chancellor sustained the cross-bill, dismissed the injunction, and awarded decree against Moore for $500, represented by timber removed after notice to vacate. Solicitors' fees were denied the cross-complainant since the injunction was heard along with the merits. Moore appeals.
We concur with all these findings. It was not error for the court to exclude the testimony of Moore touching upon his reasons for not "being able" to cut all the timber prior to April 5, 1947. (Hn 1) There is ample testimony that the entire tract could have been readily cut by Spier and his associates long prior to the assignment or transfer of their rights to Moore. The latter took no more by his deed than his grantor, Spier, had, and in responsibility took as much. Moore was chargeable with the ability and failure of Spier to cut the timber, and was not privileged to measure his rights by his own asserted inability to remove same during the limited period in which he chose to operate.
There is not here involved an automatic extension of time. Nor is the right thereto to be based solely upon the issue of the validity of his tender of a $75 payment. We do not decide whether the tender was timely. We must, however, give some effect to the words "if they have not been able to cut and remove said timber." The right to an extension, even for the consideration to be paid, was conditioned upon the ability of the grantee True and his associates, and the subsequent grantee, Moore, to cut the timber within the year. Even though we should accept appellant's assumption that the quoted phrase implied only feasibility, the record does not show that the cutting was not feasible. Appellant may have imposed upon himself an impracticable burden. If he was thwarted by physical inability to complete the cutting he undertook this task in the face of a deed which defined even feasibility or reasonable practicality in terms of the period beginning April 5, 1946.
Affirmed.