However, the courts of North Carolina have made it clear that in that state such a conveyance, as a general rule, operates as a conveyance of realty in fee simple, defeasible as to the timber that is not cut and removed within the period specified. The general rule, supported by decisions of many cases, is stated in Williams v. Parsons, 167 N.C. 529, 83 S.E. 914, 915, as follows: We have held in numerous cases that these deeds for standing timber, as ordinarily drawn, convey a fee-simple interest in such timber as realty, determinable as to all such timber as is not cut and removed within the time specified in the deed and that, while such estate exists, it is clothed with the same attributes and subject to the same laws of devolution and transfer as other interests in realty.
Traditional case law classified timber as realty. See Williams v. Parsons, 167 N.C. 529, 531, 83 S.E. 914, 915 (1914); Hawkins v. Goldsboro Lumber Co., 139 N.C. 160, 162, 51 S.E. 852, 853 (1905). As realty, timber transactions had to comply with the formalities required by a transfer of an interest in land.
"Standing trees are a part of the realty, and can be conveyed only by such instrument as is sufficient to convey any other realty." Chandler v. Cameron, 229 N.C. 62, 64, 47 S.E.2d 528; Williams v. Parsons, 167 N.C. 529, 531, 83 S.E. 914. ". . . (T)imber deeds . . ., as ordinarily drawn, carry an estate of absolute ownership, defeasible as to all timber not cut and removed within the specified period." Timber Co. v. Wells, 171 N.C. 262, 264, 88 S.E. 327. Our decisions hold that standing timber is realty, "as much a part of the realty as the soil itself," that deeds and contracts concerning it must be construed as affecting realty and that in instruments conveying the growing and standing timber to be removed within a specified time the title to all timber not severed within the time shall revert to the vendor.
In this connection in the present case these principles are pertinent: Standing timber is a part of the realty. Drake v. Howell, 133 N.C. 162, 45 S.E. 539. Hence, a contract to sell and convey standing timber is a contract for the sale of an interest in realty, Williams v. Parsons, 167 N.C. 529, 83 S.E. 914, and, in order to be valid and enforceable, it must be in writing and executed with the same formalities as are required in the transfer of a like interest in any other part of the land. Tiffany on Real Property, 3rd Ed., Vol. 2, Secs. 596, 598.
The courts are hopelessly divided upon many pertinent questions relating to rights flowing from timber contracts, and any attempt to distinguish, reconcile or harmonize decisions upon the subject is an impossible and fruitless task. In North Carolina it has been generally held: (1) That deeds for standing timber convey a fee-simple interest in such timber as realty, determinable as to all such timber as is not cut and removed within the time specified in the deed; (2) that upon severance of the trees from the land they become personal property; (3) that uncut timber and timber cut and not removed within the time specified in the contract becomes the property of the owner of the land, irrespective of whether the contract contains an express reverter clause or not. Bunch v. Lumber Co., 134 N.C. 116; Hawkins v. Lumber Co., 139 N.C. 160; Lumber Co. v. Corey, 140 N.C. 462; Midyette v. Grubbs, 145 N.C. 85; Hornthal v. Howcott, 154 N.C. 228; Bateman v. Lumber Co., 154 N.C. 248; Williams v. Parsons, 167 N.C. 529; Ollis v. Furniture Co., 173 N.C. 542; Williams v. Lumber Co., 174 N.C. 229; Morton v. Lumber Co., 178 N.C. 163. The exact question presented by this appeal has not been determined by this Court.
Pa. St., 96; Mahon v. Gormley, 24 Pa. St., 81; Methodist Episcopal Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St., 608; Jones v. Renshaw, 130 Pa. St., 327; Estate of Richard Smith, 181 Pa. St., 109; Baldwin v. Atwood, 23 Conn. 367; Mordecai's Law Lectures, 550; Tiffany on Real Property, vol. 1, 270, paragraph 79; Weller v. Brown, 160 Cal. 515; Williams v. Vanderbilt, 145 Ill. 238; Peden v. Chicago, Rock Island Pacific Ry. Co., 73 Iowa 328; Cunningham v. Parker, 146 N.Y. 29, 11 L.R.A. (N.S.), 513; R. R. v. Carpenter, 165 N.C. 465; Emerson v. Emerson, 43 N. H., 476, 80 Am. Dec., 184; Whitton v. Whitton, 32 N. H., 163, 75 Am. Dec., 163; Ry. v. Honaker, 66 West Va., 136; Henry Rahr's Sons Co. v. Buckley, 159 Wis. 589; Sohier v. Trinity Church, 109 Mass. 1. This rule does not necessarily apply to conditions implied by law, or where, from the nature of the subject-matter, or the contemplation of the parties, the condition with forfeiture is implied, as in timber deeds ( Williams v. Parsons, 167 N.C. 529, 531; Gilbert v. Shingle Co., 167 N.C. 286; Hornthal v. Howcott, 154 N.C. 228; Bateman v. Lumber Co., 154 N.C. 248; Bunch v. Lumber Co., 134 N.C. 116; Lumber Co. v. Corey, 140 N.C. 462; Hawkins v. Lumber Co., 139 N.C. 160; Strasson v. Montgomery, 32 Wis. 52; Mordecai's Law Lectures, 548, 549; Woody v. Timber Co., 141 N.C. 471), or in mining leases. ( Conrad v. Morehead, 89 N.C. 31; Maxwell v. Todd, 112 N.C. 677; Hawkins v. Pepper, 117 N.C. 407).
Defendant, therefore, being in a position to cut and remove (419) this timber within the time limit of the contract, and his right to do so having been wrongfully stayed by injunction until such time had expired, is entitled to recover the full net value of the timber as damages for such wrongful interference. Williams v. Parsons, 167 N.C. 529. In the Williams case, just cited, the interference complained of was by conduct in pais, but as to the award of damages, there is no distinction in principle between that and a case where the wrongful interference was under color of court process, which was procured on a baseless claim.
It appeared further that the said Pine Lumber Company were preparing and intended to cut the timber from said land, claiming that they had the legal right to do so under their deed from the Swansboro Lumber Company and by virtue of the payments (166) referred to. In a recent case before the Court, Lumber Co. v. Wells, it was said to be the correct deduction from many of our decisions on the subject "That standing lumber is realty," subject to the laws of devolution and transfer applicable to that kind of property, and that lumber deeds such as this convey an estate of absolute ownership defeasible as to all timber not cut and removed within the specified, period, citing Williams v. Parsons, 167 N.C. 529; Midyette v. Grubbs, 145 N.C. 85; Lumber Co. v. Corey, 140 N.C. 462. And further, that stipulations for an extension of time are in the nature of options, and that they do not in themselves create any interest in the property but amount only to an offer to create such interest when the conditions are performed and working a forfeiture when not strictly complied with, citing Waterman v. Banks, 144 U.S. 394; Thacker v. Weston, 197 Mass. 143, and other cases.
After stating the case: Our decisions hold that standing timber is realty, subject to the laws of devolution and transfer applicable to that kind of property, and that timber deeds of this character, as ordinarily drawn, convey an estate of absolute ownership, defeasible as to all timber not cut and removed within the specified period. Williams v. Parsons, 167 N.C. 529; Midyette v. Grubbs, 154 N.C. 85; Lumber Co. v. Corey, 140 N.C. 467. The cases on the subject are to the effect, further, that a stipulation of the kind now presented, providing for an extension of the time within which the timber must be cut, is in the nature of an option, and it is held by the great weight of authority that contracts of this character do not of themselves create any interest in the property, but only amount to an offer to create or convey such an interest when the conditions are performed and working a forfeiture when not strictly complied with. Waterman v. Banks, 144 U.S. 394; Hacher v. Weston, 197 Mass. 143; Gaston v. School District, 94 Mich. 502; Newton v. Newton, 11 R. I., 390; Bostwick v. Hess, 80 Ill. 138.
HOKE, J. There are numerous decisions in this State to the effect that standing timber is to be considered as realty and that a deed conveying such timber to the grantee and giving power to cut and remove same within a specified period creates a fee-simple estate in realty, not absolute, but defeasible as to all such timber as is not cut and appropriated within the time, and as the correct deduction from the position it was held, at the last term, in Williams v. Parsons, 167 N.C. 529, that such an estate, while it exists, is subject to the lien of a docketed judgment and to the ordinary methods of enforcing collection of the same, as in other cases of realty. Speaking to the subject in Williams' case, supra, the Court said: