Lake End Lumber Co. v. Washington , 1928 La. App. LEXIS 169 ( 1928 )

STATEMENT OF THE CASE

REYNOLDS, J.

The Lake End Lumber Company, a partnership composed of J. B. Hutchinson and C. M. Hutchinson, alleging themselves to be the owners and in possession of all of the cypress timber lying, standing and being on NE1^ of NE%, E% of SE% of NE%; W% of SE% of NEJ4; WV2 of NE%; of NW%; NE14 of SW14; and NWJA of SE% of Section 24 Township 10 North Range 10 West, situated in, Natchitoches Parish, Louisiana, by purchase in good faith from William M. Cady by act dated February 14, 1922, recorded in Bock 150 at page .416 of the conveyance records of Natchitoches Parish, Louisiana, and that A. L. Washington was cutting and removing the .timber and had refused to desist therefrom notwithstanding repeated requests from them, brought this suit to obtain a judgment perpetually enjoining him from cutting or removing and from attempting to cut or remove any more of said timber; and upon making affidavit and giving bond a temporary restraining order was issued.

The defendant answered the suit, admitting the alleged cutting and removal of timber as alleged and asserting that he owned the timber and had a legal right to do so. And he alleged—

“Further answering, your defendant shows that William Washington, the father of your defendant, and from whom your defendant inherits together with his co-defendants and the surviving spouse of the said William Washington * * * did sell to the Caldweil-Norton Lumber Company, as per act of sale recorded in book 124, folio 111 of the records of the parish of Natchitoches, the timber described as the cypress timber on the lands described in plaintiff’s petition. That no stipulation of time was designated for the cutting of said cypress timber and that more than sixteen years have elapsed since the execution of the said sale of said timber, and more than a reasonable time having elapsed since the date of said sale for the removal of said timber, that said timber now reverts to your petitioner and the heirs of William Washington.”

On. these issues the ease was tried and there was judgment perpetuating the temporary restraining order and forever prohibiting the defendant from further cutting or removing any cypress timber standing, lying or being on the lands described in the petition and reserving to the plaintiff the right to sue defendant for the value of such timber as he had cut of removed.

The defendant appealed.

OPINION

Plaintiff’s author in title purchased the cypress timber on the land described in the petition from defendant’s father, William Washington, who owned both the land and the timber, by a deed which failed to fix a time for its removal, and plaintiff not having removed the timber and defendant conceiving that a reasonable time for its removal had expired proceeded to cut and remove it himself on the theory that plaintiff’s right to do so had terminated by mere lapse of time.

The fact that no period was fixed by the deed within which the timber should be removed in no manner affected its validity. The omission might have been supplied on application to the proper court, or by agreement between the owner of the land and the owner of the timber. Until a period is fixed by agreement of the parties or by the proper court upon application to it, the right to remove the timber remains in the grantee indefinitely. And until a time limit has been fixed, and has expired, the owner of the land on which the timber stands has no cause of action to have the timber declared forfeited to him, or that the vendee’s title to the timber has expired.

Simmons vs. Tremont Lumber Co., 144 La. 719, 81 So. 263; Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 971, 90 So. 275.

As the deed under which the plaintiff acquired title to. the timber fixed no time limit within which it should be cut and removed and as no limit was fixed by agreement of the parties or judgment of the proper court the title to the timber is still in plaintiff and its right to cut and remove the same still subsists and defendant had no title to nor right to cut or remove any of it.

The judgment appealed from is correct and accordingly- it is affirmed.