Opinion
Filed 2 May, 1956.
1. Trial 22a — On motion to nonsuit, the evidence in behalf of plaintiffs must be taken as true and plaintiffs given the benefit of every fair inference reasonably deducible therefrom.
2. Deeds 22 — Where deed provides that timber should be cut over only once, second cutting of distinct portion constitutes trespass. Where a deed conveys all merchantable timber of a specified size upon the tract of land described, with right to cut and remove for a designated term, with provision for reversion of all timber not cut and removed during the term specified, and with further provision that the grantee should have the right to cut over the said lands only once during the term, held, the cutting of the timber from the tract or any distinct and definite portion thereof terminates the right of the grantee in respect thereto, and any cutting thereafter on such portion would be unauthorized and would constitute a trespass, notwithstanding that such second cutting is within the time allowed, and upon evidence tending to show that the grantee cut over the tract or a distinct portion thereof for saw timber and later went back and cut over the same portion for pulpwood, the issue should be submitted to the jury and nonsuit is error.
3. Same: Evidence 5 — It is a matter of common knowledge that new timber growth begins immediately after land is cut over, and that a second entry with incidental roadways and placing of locations for a sawmill would seriously interfere with the growth of new timber.
4. Deeds 22 — Where deed conveys all merchantable timber of a specified size, together with the laps, tops and slabs of the timber cut, with right to cut and remove within a specified time, the grantee has the right to remove such laps, tops and slabs within the designated period, irrespective of a provision in the deed that the grantee should have the right to cut over the land only once, since such provision does not protect grantors against removal of timber cut, but only against a second cutting.
APPEAL by plaintiffs from Frizzelle, J., September 1955 Civil Term, LENOIR Superior Court.
Jones, Reed Griffin for plaintiffs, appellants.
James N. Smith for defendant, appellee.
PARKER, J., dissenting.
Civil action for damages on account of the defendant's alleged wrongful re-entry upon plaintiffs' land and the cutting and removing of timber a second time in violation of the terms of their timber deed.
The plaintiffs, on 18 September, 1951, executed to the defendant a fee simple warranty deed for all the merchantable timber ten inches or more in diameter, twelve inches from the ground, situate on a certain described tract of land in Lenoir County.
The deed contained the following pertinent conditions:
"But this conveyance is made subject to and together with the following provisions:
"(b) All timber which is cut and removed from said lands shall be cut and removed therefrom on or before five (5) years next after the date of this deed; and all timber not cut and removed from said land on or before said date, shall be the property of the parties of the first part.
"(c) Parties of the second part shall have the right to remove from said land all of the laps, tops and slabs of the timber cut by it of the size above specified, provided the same are removed from said lands on or before five (5) years next after the date of this deed. But all tops, laps, and slabs left on said land after said date shall be the property of the parties of the first part.
"(d) In cutting and removing said timber, party of the second part shall have the right to cut or injure such smaller timber as is reasonably necessary to handle and remove the timber which it is allowed to cut under this deed, but shall take all reasonable precautions that no smaller timber shall be cut or injured other than such as is reasonably necessary.
"(e) For the purpose of cutting, milling, and removing said timber, party of the second part shall have the right to erect and maintain upon said lands a sawmill.
"(f) For the purpose of cutting, milling, and removing said timber, party of the second part shall have the right at such location as it may elect to open and maintain roadways leading to the public highway, but shall so far as is reasonably convenient use for such purposes roadways already opened; provided, that no roadway may be established upon or over any cleared land.
"(g) Party of the second part shall have the right to cut over said lands only once during the five-year period as hereinabove provided."
The defendant denied liability and alleged: "The defendant has strictly complied with all terms and provisions of the said timber deed in the operations upon said land."
The evidence will be discussed in the opinion. At the conclusion of all the evidence the court granted the motion for nonsuit and from judgment accordingly, the plaintiffs appealed.
The plaintiffs' only assignment of error is based on their exception to the judgment of nonsuit. The real controversy arose over provision (g) of the timber deed and whether the defendant had violated that provision by cutting over the land, or at least substantial parts of it, a second time.
The plaintiffs offered Clarence Wade as a witness, who testified:
"The Scarborough land is located right across the road from where I live. They went over and got the big timber. Then they came back and cut the other timber, the pulpwood. There was enough difference in the time which elapsed between the time they cut the big timber and the time they went back and cut the pulpwood that the bark would fall off the tops when they did go back after it . . . It was at least six or eight months, or it might have been more. . . . The timber nearest my house was mostly pine timber. From what I could see nearest my house I will say it was cut over twice . . . I will say that the defendant cut over the same area in the second cutting that it did in the first cutting.
"They went over and got the big timber and went back over on the same ground and cut the other timber. I mean the same acreage. They went back the second time. The pulpwood was not all grouped together. They had to scatter around and get it. They got it some here and yonder, first one place and then another."
Sam Barwick testified: "I have lived near the Scarborough land since 1919. They moved the sawmill and started cutting in the Fall of 1951. They cut the hill timber then went into the low ground and got the gum and cypress and they moved out in the Fall. I would guess that about six months elapsed between the first cutting and the second cutting, that is, the pulpwood . . . they moved out in the Fall and the next Spring, in March while we were working in our tobacco beds, the foreman of the pulpwood crew came to the bed where I was working. I said, `Look here man, you are cutting that timber twice.' He told me they were going to cut it and if anything came up about it or anybody wanted to know anything about it, to refer them to Calypso Veneer Company. . . . I would guess about six months elapsed between the first cutting and the second cutting, that is, the pulpwood."
G. E. Jackson, an expert timber cruiser, testified in substance that he had made a cruise of the timber before the sale in September, 1951, and that he made another cruise beginning on 3 June, 1953. In the course of the cruise it was easy to determine the stumps that had been recently cut. "There was a lapse of time between the recent cut and the original cut on the tract. . . . I would say that from four to six months had elapsed between the last cutting and the next cutting before that, it looked like the weathering of the stumps would indicate that." He estimated the newly cut trees amounted to 60,000 feet, worth $30.00 per thousand.
In passing on the motion for compulsory nonsuit the court must assume the evidence in behalf of the plaintiffs is true. They must have the benefit of every fair inference the jury may reasonably draw from that evidence. Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488. Measured by this standard, the evidence offered was sufficient to raise jury questions: (1) Did the defendant breach the terms of its contract by cutting over the land, or a substantial part thereof, more than once; and (2) if so, what damages are the plaintiffs entitled to recover?
Similar questions were presented to this Court in the case of Davis v. Frazier, 150 N.C. 447, 64 S.E. 200. The deed in that case conveyed all the merchantable timber of a specified size and provided "the land shall not be cut over for timber a second time." The evidence disclosed that Frazier, the grantee, had cut over some or all of the land and moved out in August or September, 1907, and returned in October, 1907, for the purpose of further cutting. In passing on the questions presented, Justice Hoke, for this Court, said: "If . . . it should be established that the land described in the deed had been once entirely cut over, or that a distinct and definite portion of the land had been once cut over, then the right of the grantees, or persons claiming under them, to cut and remove timber as to all, or the stated portions of said land, by the express provision of the contract would cease and determine, and any further cutting would amount to an actionable wrong. . . . If, however, there should be distinct and definite portions of the land which had not been cut over at all, as to such portions we are of the opinion that the rights granted under the contract will continue until they are cut over once, or the right to cut expires by limitation as to time."
"The instrument conveys to the grantees a base or qualified fee in the timber, determinable as to all timber not cut and removed within the time specified, . . . and that the land embraced in the contract shall not be cut over a second time. This last stipulation does not at all nullify the grant, but only establishes a method or condition by which the right or interest granted may be made available; and there is no reason, as stated, why this provision, made a substantial part of the contract by express agreement of the parties, should not be given effect. The insertion of this provision was no doubt caused by the suggestion indicated in Hardison v. Lumber Co., 136 N.C. 175, where it is said in substance, that if the parties desired protection against a `second cutting' they should have so contracted."
According to the rule laid down in the Frazier case, if the jury should find from the evidence in the case at bar that the lands described in the plaintiffs' deed or any "distinct and definite portion thereof" had been once cut over within the meaning of provision (g) in the deed, then as to such portion the right of the defendant would cease and terminate and any cutting thereafter on such portion would be unauthorized and would constitute a trespass for which the plaintiffs are entitled to recover.
The deed in this case, as in the Frazier case, conveyed all merchantable timber ten inches in diameter without any other classification. The deed makes no distinction between saw timber and pulpwood. It gives the defendant the right to cut over the land once only for merchantable timber — not once for saw timber and again for pulpwood. Had the parties seen fit to classify the merchantable timber as saw timber and pulpwood there might be some basis for an argument the defendant could cut over the land once for each type. If the defendant by its own arbitrary classification can cut once for saw timber and once for pulpwood there appears no sound reason why it cannot make further classifications and cut once for pine, once for oak, once for gum, and once for cypress.
The purpose of provision (g) was to prevent the spoilage of any new growth and small timber not conveyed by the deed by cutting over the same area or areas of the boundary more than once. Provision (g) would be nullified if the defendant from time to time within the five years from the date of the deed could cut over the same area, each time cutting timber of a different type. In the areas cut over by defendant for saw timber in the first operation defendant had no right to go back later in a separate, distinct operation and cut over the same area for saw timber or for pulpwood. On the other hand, in areas of the boundary, if any, not cut over for saw timber in the first operation, defendant would have the right to go back later in a separate, distinct operation and cut over such areas for saw timber and pulpwood.
Other provisions of the deed lend support to the interpretation here placed on the controversial provision. The deed gave the defendant "the right to open and maintain roads"; "the right to cut and injure such smaller timber as is reasonably necessary to handle and remove the timber which it is allowed to cut under the deed"; and "the right to erect and maintain a sawmill."
It is a matter of common knowledge that new growth, especially of pine, begins immediately after the land is cut over. Under improved forestry methods urged both by the State and Federal Governments, plantings are often begun soon after removal of the original growth. To enter a second time and again build roadways, cut smaller timber and place a sawmill on the land after it has been once cut over would seriously interfere with the growth of a new timber crop. The plaintiffs had the right to contract against such interference, and apparently did so contract by the inclusion of paragraph (g) in the timber deed.
The defendant in this case insists it did not exhaust its right to cut and remove trees suitable for pulpwood by having previously cut over the land for saw timber and cites the case of Cammack v. R-L Lumber Co., Tex. Civ. App. 258 S.E. 488, as authority. Cammack's deed to the R-L Lumber Company conveyed "the merchantable timber, both pine and hardwood," and "provided that if said land shall be cut over and timber removed therefrom (emphasis added) at any time before the expiration of the said eight years, . . . all timber remaining on said land shall revert back to me." The R-L Lumber Company conveyed the oak stave timber 18 inches in diameter to be removed in two years. After the removal of the oak stave timber Cammack sought to restrain further cutting. The Texas Court of Civil Appeals held the term "cut over" meant a cutting over for pine and hardwood, the classifications fixed in the deed, and that the removal of the stave timber alone did not exhaust the defendant's right.
In the case at bar the plaintiffs sought to include as a part of their cause of action for damages the removal of tops, laps and slabs after the defendant's re-entry in the Spring of 1953. The defendant's contention that it had the right to remove tops, laps and slabs at any time within the period of five years from the date of the deed must be sustained. These items revert to the grantors only upon the expiration of the five-year period. Provision (g) does not protect the plaintiffs against their removal for the reason that removal does not constitute a second cutting but merely the salvaging of that which had already been cut.
The discussion here, it must be understood, is based on the assumption not that the jury will, but that it may find the evidence to be true; and for that reason the case is sent back so that the jury may hear both sides and pass on the issues of fact involved.
Reversed.