Carder v. Matthey , 127 W. Va. 1 ( 1944 )

This case was instituted in the Circuit Court of Doddridge County for the purpose of having the timber reservation quoted in the majority opinion cancelled and held for naught as a cloud upon the title to the tract of ninety-three acres conveyed to the complainant, Russell G. Carder, by Edgar Matthey and R. J. Matthey, his wife, more than twenty years before the date of the decree appealed from, or on July 18th, 1921. As against the allegations of the bill of complaint treating the title of the defendants to the timber as a "defeasable fee in only that part of said timber which was saw timber at the date of said deed, * * *" the answer of defendants asserts that they hold an "indefeasable fee in said saw timber"; that they had no duty to remove the timber from the land until notified by plaintiff that the land had been cleared; and that Matthey now has the right to remove "all timber of every size and description in the woods thereon; * *". The trial chancellor granted the relief sought by the bill of complaint and this Court, in reversing that finding certainly did not intend to sustain the contentions of the answer and turn over to the defendants "all timber of every size and description" as they claimed, but intended that the trial court should restrict their right to what was "saw timber" at the date of the deed to Carder. To cause a reservation of this kind to speak as of more than twenty years after its effective date in agreement with the defendants' contention would be utterly groundless.

The majority opinion I think is unsound in basing its conclusion upon the assumption that complainant seeks to enforce a forfeiture. The bill does not so allege nor pray, and to me it seems clear that this Court cannot so read it without ignoring the fact that under our decisions a forfeiture cannot arise from the breach of an implied provision of a contract. It is true that the Vencill case (90 W. Va. 136) does speak of the noncompliance with the implied understanding in cases where the instruments under consideration do not specify a time for the removal of the timber as constituting a forfeiture of that right, and it is also true that the syllabus in the Moore case (104 W. Va. 513) speaks of a claimed forfeiture. To my mind neither case adjudicates in a binding sense that in this jurisdiction the forfeiture can be based upon other than the violation of an expressed provision or covenant of a written instrument. If either case does so, that finding is squarely in the teeth of the eighth syllabus of Peerless Carbon BlackCompany v. Gillespie, 87 W. Va. 441, 105 S.E. 517, which reads as follows: "A condition or covenant arising by mere implication will not sustain a forfeiture. It must be express." The Peerless case is preceded by Core v. NewYork Petroleum Co., 52 W. Va. 276, 43 S.E. 128, and is followed by McCutcheon v. Oil Gas Co., 102 W. Va. 345, 135 S.E. 238; both of which are to the same effect. Certainly no stipulation that contemplates a forfeiture upon failure to perform, forfeiture being admittedly disfavored both at law and in chancery, would be added to a contract by legal implication, the rule being that any reasonable construction of even express language is preferred to that which would impose a forfeiture.

But conceding that the terms of an implied understanding when violated could be the basis of a forfeiture, so far as the removal of the timber within a reasonable time is concerned, that understanding, while implied, is as much a part of the written contract as though embodied within it. That being so, and the contract being one for the sale of land, it follows that Code, 36-1-3 (Statute of Frauds) applies with the result that its terms cannot be varied nor altered by subsequent parol agreements or negotiations, such as is permitted by the majority opinion. Thompson v. Robinson, 65 W. Va. 506,64 S.E. 718; 27 R. C. L. 312. The parol evidence rule that excludes prior or contemporaneous verbal agreements but does not apply to subsequent like understandings has no application to this situation. I therefore, am of the opinion that much of the discussion of the majority opinion is inconsequential.

But viewing the case from the attitude of the majority, and conceding that the circumstances justify the consideration of a forfeiture by the violation of terms not expressly included in the instrument, and admitting further that parol evidence may be considered as changing the terms of a contract falling within the Statute of Frauds, I am even then of the opinion that upon a careful reading of the clause dealing with reservations or exceptions in the light of the evidence, which of course is to be applied with all doubt resolved in favor of affirmance, the trial chancellor's decree, based as it is on a mixed question of law and fact, should not be reversed.

It will be seen that in the deed in question there are two stipulations dealing with the right of removal of timber. The first is a part of the clause reserving the right to "set" a saw mill on the premises for the purpose of manufacturing the timber to be cut into lumber. The grantor retains the right to remove the lumber so made within a reasonable time. With that provision we are not now concerned. The second deals with the right of the grantee to "clear" the timbered land and by clear inference gives him the right to do so at his own expense to the extent that he elects from time to time, provided that after having done so the grantee shall notify the grantor, who shall thereafter have a reasonable time in which to remove it "or forfeit the right to said timberon such ground, cleared" (emphasis supplied). It will readily be seen that there is no provision affecting the removal from the entire tract of standing timber by the person reserving title thereto. For that reason it is necessary to closely examine our decisions and to refer in passing to the general authorities, to the chaotic state of which West Virginia has contributed. See the exhaustive annotations to be found in 71 A.L.R. 143; 42 A.L.R. 641; 31 A.L.R. 944; 15 A.L.R. 43.

It is well established that a separate title in perpetuity to standing timber can be created by either grant or reservation if the purpose to do so is plainly expressed. Neither a simple grant nor a simple reservation, without more, under our cases and the weight of authority, has that effect, but each carries with it the implied provision that the owner of the standing timber is bound to remove it from the land upon which it stands within a reasonable time.

In the case of Null v. Elliott, 52 W. Va. 229, 43 S.E. 173, in applying a written contract in language granting timber outright, although not acknowledged, but limiting its time for removal to two years, this Court held that the limitation was a condition of sale; that the purchaser took the timber that he could remove in the specified time; and that the additional timber remained the property of the owner of the land. The opinion refers to no previous West Virginia cases on this point, but does cite general authority.

In the case of Adkins v. Huff, 58 W. Va. 645, 52 S.E. 773, 3 L.R.A. (N.S.) 649, 6 Ann. Cas. 246, which seems to be the only West Virginia case involving a reservation of timber, it was held that under the language, "Said first party, M. J. Adkins reserves and still owns all timber", there being a definite limit of the time of removal, the grantor was not vested with absolute and unconditional title to the timber reserved but that such as remained unsevered at the expiration of the time limit was the property of the land owner.

Keystone Co. v. Brooks, 65 W. Va. 512, 64 S.E. 614, involved the construction of a deed conveying the timber upon a tract of almost four thousand acres without prescribing a time within which the timber granted should be removed. The Court did not expressly overrule the Null and Adkins cases, but the single syllabus does hold that the failure to remove the timber owned separately from the remaining fee, does not cause its owner to lose his title. In spite of that holding, however, the opinion at the top of page 515 contains the following language: "Though, where there is no such time limit or condition, there is no forfeiture of title to timber, yet I apprehend that the right to keep the timber standing does not endure forever, and thus encumber the land and prevent its cultivation, but must be removed in a reasonable time." It would seem that this syllabus considered in connection with the opinion would leave West Virginia in the unenviable situation of a number of states which hold, in effect, that while delay in removing of timber does not forfeit the title thereto, it nevertheless does, after a reasonable time, end the right to remove it. This places the owner of the fee in a position where he cannot cut the timber without risking liability to the holder of its title, and the owner of the timber in the position that he cannot gain possession of his property without trespassing upon the land of another.

In Williams v. McCarty, 82 W. Va. 158, 95 S.E. 638, 646, 100 S.E. 565, the Court in effect reversed the Keystone case, and held that the successor in title of the owner of the fee, as to such standing timber as had been separately disposed of by sale under a deed of trust limiting the time of removal, could, after the expiration of that time, sell the timber and retain the consideration therefor.

In Hill v. Vencill, 90 W. Va. 136, 111 S.E. 478, which involved a rather complicated state of title, the ownership of all of the timber on a tract of four hundred and eight acres being vested in one coparcener, the purpose was to partition the surface and decide the question of the ownership of the standing timber, together with the right of removal. This case definitely decides that a deed for timber which does not prescribe a time for its removal, by implication requires that it be done within a reasonable time. The second point in the syllabus reads as follows: "Although such a deed vests title to the timber in the grantee, it does so only upon the condition that he remove it within a reasonable time." The case decides also that the right of removal as it applies to a coparcener who also owns the standing timber on the whole tract, does not commence to run as against him, due to his undivided interest in the entire boundary, until that boundary is partitioned and that then the reasonable time for the removal of the timber does not apply to the boundary acquired by him but merges with the absolute ownership, but as to the remainder of the original boundary the time limit begins to run.

In Stump v. Moore, 104 W. Va. 513, 140 S.E. 480, it is held, the syllabus referring to the first and third syllabi in Hill v. Vencill, 90 W. Va. 136, 111 S.E. 478, that in a grant of timber specifying no time for its removal a reasonable time is implied, and that the length of time depends on the facts in each case.

Our most recent case dealing with the question, although there is no applicable syllabus, is that of Jones v. Gibson,118 W. Va. 66, 188 S.E. 773. This case recognizes that by clear and explicit language "an estate in perpetuity, in standing timber" can be created, but that if timber is separated from the remaining fee and granted without any limitation fixed for the time of its removal, that it must be removed within a reasonable time to be determined by the circumstances of each particular case.

It will be seen from the foregoing recapitulation of the West Virginia cases that they are far from being in harmony and that there has been little effort to reconcile them. Upon careful reading, it will be found that their use of terms is not helpful. Consequently, I wish to deal shortly with some of the problems presented.

To what does the fixing of the time by the circumstances in each particular case refer? In examining this question, to my mind, there are two matters that must be kept constantly in mind; first, that the deed speaks as of the time of its execution and delivery, and second, that the terms of a deed cannot be altered nor superseded by a subsequent verbal agreement. Of course, that does not consider the matter of estoppel, which does not relate to the instrument itself, but is to the effect that the terms of an instrument may not be enforced by a person who has knowingly placed himself in a position where to do so would be an alteration of position to the injury of another. But here the defendants claim full ownership under the terms of the reservation, not estoppel. It is also to be remembered that a reasonable time does not, except by inference, relate to the beginning of removal operations, but that it does mean their completion. Consequently, the circumstances of each particular case depend upon the size of the tract, the nature of the land, the means of transportation, the available labor, and other possible factors. The beginning of the reasonable time period, of course, cannot be before the right of entry for the purpose of removal commences. If this is delayed beyond the time that the instrument transferring the timber goes into effect, it would certainly be inequitable to start the period for removal then. On the other hand, to delay its starting after the facilities to do so became available would be equally unfair.

A deed speaks as of the time of its execution and delivery and the description of the property conveyed is not to be later altered by parol. Code, 36-1-1. Consequently a transfer by reservation of timber applies only to trees that are then to be considered as being timber. Prior or contemporaneous oral understandings are merged and cannot affect this description, although the conduct of the parties subsequent to the deed's going into effect may operate as a practical construction of an ambiguity. Here we are dealing with a legal implication and have no ambiguity. We are confronted only with the legal effect of the implied understanding between the parties to the deed concerning the reasonable time for the removal of the timber then in existence. That reasonable time cannot be a period long enough to render impossible the identity of what was standing timber at the date of the deed. In this case that could be determined exactly only by counting the annulations of the trees, thus determining their present age and their size twenty years ago, and that could only be done with felled, not standing, timber. The owner of the remaining freehold is, of course, interested in the removal of timber from which while left standing he will receive no benefit, and which to him will be only a burden by preventing other uses of the land and the growth of undersized trees. For this reason the implied understanding concerns the removal, the entire taking away, of the timber, which must be completed within a reasonable time. Some of the cases have gone so far as to hold that notice has the effect of accelerating the lapse of a reasonable time for removal, and consequently affects the commencement of operations for that purpose.Boults v. Mitchell, 15 Pa. 371; Patterson v. Graham, 164 Pa. 234,30 A. 247; Gregg v. Birdsall, 53 Barb. (N.Y.) 402. See also Note, 55 L.R.A. 513, 535. Others that mere severance constitutes removal. Williams v. Flood, 63 Mich. 487,30 N.W. 93; Hicks v. Smith, 77 Wis. 146, 46 N.W. 133.

To my mind, as to the nature of the title there is no material difference between provisions that limit the right of removal of timber to a specified period and those which place no limit on that right. In principle, if they contemplate all timber, they create exactly the same title. Therefore, the parties concerned not having agreed upon this essential, I think it should be considered as equivalent to a grant upon a condition precedent, the operation of which continues for a reasonable time allowing the removal of all or any part of the timber involved from the land upon which it stands. During that time the right of entry, the right to fell timber, and the necessary haulage rights are integral parts of the right to remove. Compliance and the complete vesting of title in the timber takes place as its claimant executes his right of removal and operates only to the extent that he exercises that right within a reasonable time of having acquired it.

As stated, a reasonable time under all the cases depends upon all the surrounding circumstances including the size of the tract, the terrain, available labor, and other pertinent considerations. Here we have a tract of but ninety-three acres not more than half of which has standing timber. The time during which operations looking to removal have not been even started exceeds twenty years. Certainly it would take but little proof to show that twenty years is an unreasonable length of time to be consumed in actually removing the timber from slightly more than forty-eight acres of land located in a farming section on a paved highway. I believe this record, overlooking the questions of forfeiture and of the Statute of Frauds, first discussed, so shows. Therefore I would affirm the decree of the trial chancellor.