Cotton States Lumber Co. v. James , 98 Miss. 134 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

This is a bill by the appellee, James, against the appellant, the Cotton States Lumber Company, seeking to cancel, as a cloud upon his title to certain lands, the claim of the appellant to an easement over and through such lands for its logging railroad. A demurrer was interposed to the bill, and overruled by the court below, and an appeal to this court granted to settle the principles of the cause. The case involves a construction of the following contract:

“For and in consideration of the sum of $2000 received from the grantee, we, Jos. A. and Lizzie 0. James, hereby sell, convey,.and warrant unto the Cotton States Lumber Company, a corporation, created and existing under the laws of the state of Mississippi, domiciled in Lauder-dale county, all merchantable timber, that is to say, of the size sufficient for saw logs in and upon the following described lands, situated in Lauderdale county, state of Mississippi, to wit: The N. E. % of the S. E. 14 and the south y2 of the S. E. % and the E. % of the S. E. % of the S. W. 14 and the S. W. % of the S. W. % of section 19, and the N. W. 14 of the N. W. 14 of section 30, all in township 8,. range 14 east. And it is understood and agreed that the said Cotton States Lumber Company, its successors and assigns, shall have four years from Jan. 1, 1906, in which to cut and remove said timber and for that purpose enter upon said lands and establish or construct thereon roadways, railroads, or other means necessary for such purpose, and also, in the event it shall be deemed necessary to cross said lands, or any part thereof, after the said timber shall have been removed, to reach other timber of said grantee, it may construct and maintain such roadways, tramways, or railroads, or other means, over and across said lands, as may be needed. And this right shall be binding upon the grantors, their heirs and assigns. And it is further understood and agreed that the said James shall have the right to enter upon any of said lands as the timber shall be removed therefrom; provided, however, that this right shall not interfere with the right of said company to use any part thereof for rights of way as aforesaid.”

The contention of appellant is that under the provisions of the contract it has the right, after the removal of the timber from the lands of appellee, to continue to maintain and operate its tramways and railroads over such lands as long as may be necessary to reach other timber owned by it; while appellee contends that such right expired with the four years given by the contract for the removal of the timber from his lands.

For a consideration of two thousand dollars, paid by appellant, appellee conveyed to it, first, all merchantable timber of size sufficient for saw logs, standing on his lands (which are described), limiting the time for removal of same within four years from January 1, 1906; second,' for the purpose of removing the timber, the right to maintain and operate tramways, railroads, etc., over his lands; and, third, after the removal of the timber from his lands, to enable the lumber company to reach other timber owned by it, the right to “construct and maintain such roadways, tramways, or railroads, or other means, over and across said lands, as may be needed,” and this right shall be binding upon “the grantors, their heirs, and assigns,” reserving to himself “the right to enter upon any of said lands as the timber shall be removed therefrom; provided, however, that this rig’ht shall not interfere with the right of said company to use any part thereof for rights of way as aforesaid.” The clause limiting the time for the removal of the timber from appellee’s lands to a period within four years from January 1, 1906, and the one following, conveying the right to appellant, after the removal of such timber, to maintain its road over such lands, for the purpose of reaching other timber owned by it, harmonize. By the former a limitation of four years is clearly provided for the removal of the timber from appellee’s lands, while by the latter it is just as clear that appellant got the right, after such removal, without limit of time, except as long as its necessities required, to maintain its road over appellee’s land in order to reach other timber owned by it, there being nothing in the contract to show the parties intended that the limitation in one should be read into the other; and the correctness of this construction is emphasized by the last clause in the contract, giving appellee the right to re-enter on his lands as the timber was removed, “provided, however, that this right shall not interfere with the right of said company to use any part thereof for rights of way as aforesaid,” showing that the parties had in mind that this easement was valuable to- appellant, and an important part of the consideration, while, if the limitation of four years applies, it would be of no value whatever, if appellant consumed the whole period in removing the timber from appellee’s lands.

It is contended for appellee that the clause in question is void, because not sufficiently definite and certain in its terms. The lands over which the easement is granted are sufficiently described, and the duration of the easement is as long as may be necessary “to reach other timber of said grantee,” which evidently means (putting a reasonable interpretation on the language) other timber owned by the grantee at the time of the making of the contract, and not timber which' it might thereafter acquire for an indefinite period; nor would the appellant have the right to the easement for an indefinite period, but only for such time, under the conditions surrounding, as would take, with reasonable expedition, to remove the other timber so owned by it. Beck v. L., N. O. & T. R. R., 65 Miss. 172, 3 South. 252, and Belzoni Oil Co. v. Y. & M. V. R. R., 94 Miss. 58, 47 South. 468, have no application here, because the contract involved in those cases conferred a mere license on the grantees, without any interest in the land, while this contract confers an easement, which is an interest in land, and not revocable at the will of the grantor.

Reversed and remanded.