Norfolk Lumber Co. v. Smith ( 1909 )

CLARK, C. J., and WALKER, J., dissenting. Plaintiff appealed.

This case was heard and decided at the September Term, 1907 (146 N.C. 158). A petition to rehear was filed and ordered to be docketed. The facts upon which the decision was based are set out in the report of the case and need not be repeated, except in so far as they may be necessary to dispose of the petition to rehear. When this case was before us at a former term it was argued only on one side, plaintiffs' counsel filing a brief. Our attention is now called to language in the deed from Barnes to Etheridge, under which plaintiffs claim title to the timber, which was not then adverted to or discussed. The decision went upon the view that the clause giving the grantee the right to call for an extension of two years after the expiration of the original term granted was confined to the (254) removal of the timber. After a careful reconsideration of the language of the entire deed, we are of the opinion that we failed to give full effect to all of its provisions and adopted a construction unduly restrictive of the plaintiffs' right. Following the premises, a description of the land, etc., the entire deed is in the following language:

"For and in consideration of the sum of $1,400 in cash, the receipt of which is hereby acknowledged, I have this day agreed to bargain and sell, and by these presents to bargain and sell, to James E. Etheridge, of Norfolk, Va., his heirs and assigns, with the privilege of moving, as hereinafter stated, at any time within four years from date, subject to the conditions hereinafter contained, all of the pine sawmill timber of the following dimensions — that is, 12 inches in diameter at the stump at the time of removing — on the tract or parcel of land situated in the county of Harnett, in the State of North Carolina, and bounded as follows, to wit: Consisting of about 375 acres, more or less, and known as the Smith tract, bounded on the north by A. R. Wilson and William Fowler estate lands; on the east by John Williams and Fowler estate; south by Byrd Bros., who bought the southern part of said tract, by their line to Parker Covington land, and by his line to the beginning. The said James E. Etheridge, his heirs and assigns shall have four years to cut,haul and remove said timber from said land; and if longer time is desired to remove said timber the right is hereby granted, upon the payment of eight per cent per annum upon the purchase price for the time it takes after the expiration of the four years herein granted, together with the right and privileges for and during the said period from this date; that his agents, heirs or assigns to enter upon said land or any other land owned by him, and to pass and repass on the same at will, on foot or with teams and conveyances; to build lumber camps, stables and other fixtures; to cut and remove the said timber, and to construct and operate any roads, tramroads or railroads over and upon said lands as the said James E. Etheridge, his heirs or assigns may deem necessary for cutting and removing said timber, and to use such trees, underwood and brush on said land as may be needed in the construction and (255) operation of said roads, tramways and railroads, and to use and operate any railroads, tramways or roads that the grantee herein or his heirs or assigns may construct or cause to be constructed, so long as they desire, not exceeding two years; the right to remove any and all fixtures, roads, railroads and tramways or anything put up by said James E. Etheridge, his heirs or assigns on said lands."

Eliminating unnecessary verbiage, the clause in respect to the extension of time reads as follows: "Said E. . . . shall have four years to cut, hauland remove said timber from said land; and if longer time be required toremove said timber the right is hereby granted, upon the payment of eight per cent per annum upon the purchase price for the time it takes after the expiration of the four years herein granted; . . . to cut and remove the said timber and to construct and operate such roads . . . as the said E. . . . may deem necessary for cutting and removing said timber, so long as they may desire, not exceeding two years." It thus appears that the extension of two years includes the right to "cut and remove," these words being connected with and placed in their legitimate relation to the words "herein granted." In this way we think a natural interpretation is given the instrument and all parts of it given effect, which is the primary purpose of all construction. To eliminate the words "to cut" and "cutting," leaving only the words "remove" and "removing," is not allowable. It is elementary that it is the duty of the court to ascertain and effectuate the intention of the parties to written instruments, but it is also elementary that they must gather intention from the language used. No question is raised in regard to the reasonableness of the time granted to cut and remove. The original period of four years extended, "not exceeding two," makes in all six years, and this has never been suggested as unreasonable. There is no uncertainty respecting the time when the grantee must begin to cut; hence none of the questions in that respect which have been before this and other courts are involved here. The simple question is whether by the language of the deed the extension from and after the expiration of the four years includes the right to cut as well as remove the timber sold to the grantee. For the reasons given, we think it does. (256) Plaintiff, the assignee of Etheridge, before the expiration of the original period, gave notice that it desired an extension of "four years." Of course, it was not entitled to so long a time, but its error in this respect did not work a forfeiture of its right to two years. Defendant denied that it was entitled to any extension, and began to cut the timber. In this they were interfering with plaintiff's right. Fully recognizing the wisdom of adhering to our decisions, we as fully recognize our duty, when, by inadvertence or a failure to correctly interpret the language of an instrument or to give due weight to controlling reason and authority, we have fallen into error, to correct it at the earliest opportunity. The petition must be granted and the order heretofore made reversed. The injunction should have been continued to the hearing. This will be certified to the Superior Court of Harnett, to the end that further proceedings may be had in accordance with this decision.

Petition allowed.