Mine LaMotte Lead & Smelting Co. v. White , 1904 Mo. App. LEXIS 345 ( 1904 )

GOODE, J.

(after stating the facts). — The instructions indicate that the trial court was of the opinion that if the defendant was in possession of the land for the purpose of cutting timber when the plaintiff acquired title,.the latter could not recover. The land was wild and uncultivated and defendant felled trees where be pleased on any of the different tracts. The question which demands first consideration, and from several points of view, is what right or interest he had in the trees.

If the memoranda of the sale of the timber by Gabriel to Burnley are to be taken as meaning what they say, Gabriel assumed to act as agent of the Mine LaMotte Company, that is, the plaintiff, in making the sale, and not as agent of Leathe. His testimony as to whom he represented and the authority he had is far from satisfactory, and his conduct in signing the memoranda in the form he did, is incomprehensible if he was Leathe’s agent. But the testimony as a whole will support, in a weak way, the conclusion that he represented Leathe by virtue of a general authority from Stephens. It is certain plaintiff did not own the land at that time and that Gabriel was not plaintiff’s agent then, though he had been years before.

The law in this State is that growing trees are part of the realty. The title to them lies in grant and must be transferred by the formalities essential to a conveyance of land. An interesting discussion of this proposition, which has been decided in several cases, will be found in Potter v. Everett, 40 Mo. App. 152. Other decisions in point are: Deland v. Vanstone, 26 Mo. App. 297; Andrew v. Costican, 30 Mo. App. 29; Kelly v. Vandiver, 75 Mo. App. 435; Railway Co. v. Truman, 61 Mo. 80. A different rule prevails in some States and in England.

If the memoranda of the sale of the trees were executed by Gabriel in behalf of Leathe and by authority from the latter, they were ineffectual to pass title to Burnley, who sold to the defendant. Hence the defendant acquired no title. As the trees were part of the realty the statute of frauds required a memorandum of the sale of them to be signed by the owner or an agent who held written authority from the owner. R. S. 1899, sec. 3418. Whatever authority Gabriel may have had from Leathe, he produced no written evidence of it; and his authority is said to have been verbal. Moreover, the memoranda relied on do not contain the name of the grantee, nor the terms of sale; which are necessary constituents of a writing sufficient to satisfy the statute. Besides bearing the signature of Gabriel as agent of the Mine LaMotte Company, one of them explicitly states that Bnrnley was empowered to cut all saw timber on certain sections of land (those from which the timber in controversy was cut) belonging to the Mine LaMotte Company; thereby emphasizing the conclusion that the memoranda were neither given by Gabriel for Leathe, nor understood to be by Burnley. It is impossible to hold those writings accomplished a sale of the trees to Burnley by Gabriel as Leathe’s agent in a manner consonant to the statute of frauds.

Possession of the timber by Burnley and White under the contract of sale is relied on to relieve White’s claim from the nullifying effect of the statute; that is to say, part performance of the contract. Leathe himself was never in actual possession of the land and the supposed vendees of the timber held no title to any of the land, except the mill site, which could confer constructive possession on them. The constructive possession remained, therefore, in Leathe, the holder of the title. Burnley and WBiite might go on the land to fell'trees, but that privilege did not constitute part performance to take a parol contract for the sale of an interest in the land (to-wit, the timber on it) out of the statute of frauds.

Neither was payment of the purchase price sufficient. Bean v. Valle, 2 Mo. 103.

Again conceding for the sake of argument that the memoranda were given in behalf of Leathe, if they were abortive as a contract of sale, they amounted to a license to Burnley to enter and cut timber. But the license was revocable by the plaintiff after it became the owner of the land; and perhaps was personal to Burnley and nonassignable. Potter v. Everett, supra.

We are cited by defendant’s counsel to decisions holding that in instances when expense has been incurred under a license, as by making improvements on land, it is irrevocable. The rule prevails everywhere that a license confers right enough to screen a person acting on it before revocation from liability as a trespasser. Fuhr v. Dean, 26 Mo. 117. But as to a right to exercise a license becoming vested and permanent by making an outlay of money or labor on the faith of it, with the knowledge of the licensor, discord has existed in the courts of some jurisdictions, including this one; as will be seen by turning to the following cases: Fuhr v. Dean, supra; Desloge v. Pearce, 38 Mo. 588; Baker v. Railway Co., 57 Mo. 265; House v. Montgomery, 19 Mo. App. 170; Gibson v. Association, 33 Mo. App. 165; School Dist. v. Lindsay, 47 Mo. App. 134. The doctrine of the irrevocability of licenses grew out of a desire to protect licensees from arbitrary and unjust deprivations of their privileges which would entail serious losses. The rule is applied by raising an equitable estoppel against the licensor on the assumption that he is to blame; as morally he is. But to make the license perpetual by estoppel has the effect of transferring to the licensee an interest in the land in plain disregard of the statute of frauds, which declares such interests must be transferred by a writing. For that reason the doctrine of the irrevocability of an executed license has been abjured in most courts where it was once professed. Brown, Statute of Frauds (5 Ed.)', sec. 30 et seq. We will not review the Missouri decisions nor point out their discrepancies; for this was done in the last expression of our Supreme Court on this subject in Pitzman v. Boyce, 111 Mo. 387, a case wherein a license to drain sewer pipes into a sinkhole on the defendant’s lot was held revocable, though it had been in force for many years and much money had been spent in improving the subterranean passage on the strength of it. In an excellent opinion Judge Sherwood expounded the reasons for denying the perpetuity of a licensed privilege because of outlay. See too, Woodward v. Seely, 11 Ill. 157.

Courts never have held directly that a party acting on a license could acquire an interest in the licensor’s land; though in giving perpetuity by estoppel to a license they practically did so. It has always been the rule that easements passed by grant and lands by livery or deed. If we accept the contention of the defendant in the present case, we would be conceding to him the acquisition of an estate in the land on which the timber grew, by virtue of a license to enter and cut timber, in the face of the statute of frauds; which says no such interest can be acquired except by a conveyance or a sufficient memorandum.

This defendant knew when the plaintiff bought the land on which he was cutting timber, and if he cut thereafter he did so at his peril.

An authority which is directly in point on the proposition that permission to cut trees may be recalled, though unlike our Missouri decisions as to the need of a writing to pass title to them, is Drake v. Wells, 11 Allen, 141. In that case it is said:

‘The doctrine is now well settled that a sale of timber or other product of the soil, which is to be severed from the freehold by the vendee under a special license to enter on the land for that purpose is, in contemplation of the parties, a sale of chattels only, and can not be regarded as passing an interest in the land, and is not for that reason required to be in writing as being within the statute of frauds. Such license to enter on the land of another, so far as .it is executed, is irrevocable; because, by the severance of the timber or other growth of the soil from the freehold, in execution of the license, it becomes personal property, the title to which is vested in the vendee absolutely, and the rule applies that where chattels belonging to one person are placed or left on the land of another, with the permission or assent of the latter, the owner of the chattels has an implied-irrevocable license to enter and remove them. In such case the owner of land can not, by withdrawing his assent to enter on his premises, deprive the owner of chattels of his property, o’r prevent him from regaining possession of them. The law will not lend its aid to the perpetration of a fraud. But it is otherwise where the contract had not been executed by a severance of the subject-matter of a contract of sale from the freehold! So long as the timber or other product of the soil continues in its natural condition, and no act is done by the vendee towards its separation from the soil, no property or title passes to the vendee. The whole rests in contract. A revocation of the license to enter on the land does not defeat any valid title; it does not deprive an owner of chattels of his property in or possession of them.”

If the principle of some of the cases would protect the defendant in acting under the license so far as to allow him to keep the lumber which he had sawed prior to its revocation, as he had expended labor and money on that lumber, he certainly acquired no ownership of the trees, or their product, cut after he knew the land had been sold. The instructions requested by plaintiff’s counsel only asked a verdict for possession of the lumber manufactured after March 1, 1903; at which date, as is conceded, plaintiff acquired title to the property and the trees which were part of it, without notice of the defendant’s claim. The court erred in refusing those instructions and in adopting the theory that if the defendant was in possession and engaged in cutting timber on March 1st, plaintiff could not recover. We know of no principle of law which sanctions that ruling.

Defendant’s counsel Lave cited us to decisions supposed to support the proposition that replevin will not lie if defendant’s possession continued until the timber was cut and the lumber sawed. The cases relied on are: Jenkins v. McKay, 50 Mo. 348; Adams v. Liep, 71 Mo. 596; McAllister v. Lawler, 32 Mo. App. 91; Hayden v. Burkemper, 40 Mo. App. 346; Edwards v. Eveler, 84 Mo. App. 410. Those authorities hold that a person in possession of land who raises and harvests a crop, may retain it against the purchaser of the land. This, we suppose, is because growing crops are now held to be personal property and not part of tbe realty. Garth v. Caldwell, 72 Mo. 622; Stafford v. Spratt, 93 Mo. App. 631. This rule in regard to growing crops being chattels and capable of sale as snch before maturity, is a concession to agricultural industry, made because those crops require labor to raise them. A different rule prevails in regard to timber, which grows without manual labor. That an owner may maintain replevin for timber cut on his land, has been directly decided in cases like this one; for while severed timber becomes personalty the title remains in the owner of the land. Kelley v. Vandiver, Andrew v. Costican, supra. The caso last cited is identical in principle with this one. The plaintiff relied on a memorandum purporting to transfer the title to his partner, the plaintiff claiming as the surviving member of the firm. The memorandum was construed to have no more force than a bill of sale and to be insufficient to convey title to the logs in dispute to the plaintiff, as timber is part of the realty and must be conveyed as land is. That was a replevin action for saw logs.

Our conclusion is that no defense was shown to plaintiff’s right to the lumber manufactured from trees cut from the land subsequent to its purchase, and that the only question was what portion of the lumber replevied was the product of trees cut after the purchase. There is no proof that plaintiff’s lumber had been so mixed with the defendant’s as to debar a recovery in specie. Defendant stated definitely the quantity cut after March 1, 1903, and if that lumber could be iden-' titled, or if it could not be because of intermixture with other lumber of the same kind and value, this action will lie. Kaufman v. Schilling, 58 Mo. 218; Rust, etc., Co. v. Isom, 70 Ark. 99.

The judgment is reversed and the cause remanded.

Bland, P. J., concurs, Reyburn, J., absent.