Salway v. Multnomah Lumber & Box Co.

This is an action at law, brought on account of nonpayment of taxes. The deed forming the basis of the action was, for a valuable consideration, executed and delivered by plaintiff to defendant on August 25, 1922, and was thereafter recorded in the Record of Deeds of Lincoln county. By its terms, the grantor bargained and sold to the grantee, its successors and assigns, all of the down, dead, and standing timber situate upon the land described in the deed, and granted to the grantee the right to go upon the land "with all manner of equipment for the purpose of logging said land, and * * * the right to construct roads, logging roads and railroads over and across said land, or any part thereof." The deed was conditioned as follows:

"All the timber on said land shall be removed within six years from the date hereof * * *.

"Provided, however, that the rights hereby granted shall not continue for more than six years from the date hereof, with the right in the Multnomah Lumber Box Company at the expiration of said six years or at any earlier date to remove its railroad and equipment of every kind and description. Any timber, lumber, shacks or buildings remaining on the property at the expiration of said six years shall become the property of the said F.R. Salway, or his assigns.

"The Multnomah Lumber Box Company shall pay the taxes hereafter falling due on the above-described real property during the time it shall exercise and enjoy the rights hereby granted, or any part thereof, it being understood, however, that the said Multnomah Lumber Box Company may surrender such rights at any time prior to the expiration of said six years at its option."

The action was tried to the court, without the intervention of a jury.

The court found, in substance, that, under the terms expressed in the contract upon which the action was predicated, the defendant, for value, agreed to pay the taxes on the timber lands described in the contract during the entire term thereof, or until such time as it might surrender its rights thereunder, and "that the defendant never, at any time, exercised its option to surrender its right under the terms and conditions of said contract or deed, and that the same remained in full force and effect during the entire term of six years therein provided for;" that the defendant lumber company paid the taxes on the land for the year 1922, amounting to $61.56, and that it paid $79.14, being a portion of the taxes for 1923, and $133.09, a portion of the taxes for 1924. The court further found, and it was stipulated, that the plaintiff paid taxes on the property for the years 1923 to 1927, inclusive, amounting to $601.33.

As a conclusion of law, the court found that, by reason of its failure to pay the taxes as set forth in the deed, the defendant lumber company was indebted to the plaintiff "in the sum of $601.33, with interest on the sum of $415.78 from May 14, 1927, and interest on the sum of $185.55 from August 31, 1928, at 6 per cent per annum until paid."

Based upon these findings and conclusions, judgment was entered in favor of plaintiff, and defendant appeals. The findings of the trial court have the effect of a verdict by jury: Oregon Code 1930, § 2-503.

Does the evidence adduced in this case justify the findings made by the court? We concern ourselves with this question only.

The deed involved, by its provisions, binds the lumber company to pay the taxes falling due upon the property described therein after the date of the transfer, pending the time "it shall exercise and enjoy the rights hereby granted." It further provides that the company may surrender such rights at any time prior to the expiration of the option of six years. As to the meaning of "exercise," it is said in 25 C.J., 165:

"The word * * * has been defined as to put in action; to put in practice; to do or carry on something; to transact. It has by context also been held to be equivalent in meaning to ``usurp.'"

The term "enjoy," as used in the contract, has been defined to mean "to have the benefit of; to occupy or have the benefit of; to have, possess, and use with satisfaction; to have the advantage of using": 20 C.J., 1263.

It is shown by the record herein that, during the six years that the defendant enjoyed the right to go upon the land with equipment to log the same, and the further right to construct roads, logging roads and railroads over and across the land, it failed to construct such roads, or to cut and remove the timber; but it is likewise shown that it did enjoy and exercise the right to attempt to sell and dispose of its option to purchase the premises described in the deed. The deed conveyed to the defendant, "its successors and assigns," all the down, dead, and standing timber on the real property described therein. The defendant company was exercising a valuable right when it was negotiating for the sale of its rights to the property. There is an attempt to show that the defendant abandoned its option, being thereby released from paying the taxes upon the land. This contention is not tenable. It is clear from the record that representatives of the defendant company undertook to negotiate, and did negotiate, with the plaintiff for an extension of the lease, and that the company did not at any time exercise its right to surrender the option to purchase. The correctness of this statement is obvious from a careful study of the record in its entirety. We note, for example, the following excerpt from the testimony of the president of the company:

"Q. Didn't you tell Mr. Salway that you would take that timber off before the six years expired if you had to have it cut into cord wood? A. I think that might have been said to him with the idea of trying to coerce him to do something; but we never had any idea of doing it, because it would not be practicable. * * *

"Q. Now, as a matter of fact, Mr. Douty, you continued to claim your rights there in the timber during the entire period of the contract, didn't you? A. We lived in hopes that we might be able to salvage something out of it sometime, so that was the occasion of carrying on negotiations with Mr. Salway."

In January, 1926, the plaintiff's attorney wrote the defendant with reference to the taxes, and the defendant replied, in part:

"We infer from your letter that in this case there has been a separate assessment made on the land, and referring to our contract with Mr. Salway we find that we are not obligated to pay taxes on this land in case a separate assessment has been made. We are therefore writing to the sheriff of Lincoln county, today, requesting a statement covering taxes on land only. As soon as this has been received and checked, we will be glad to pay this up to date."

In the matter of abandonment, this letter further strengthens the position taken by the writer.

We are satisfied that the finding of the court that the defendant herein agreed to pay the taxes in question is sufficiently fortified by the evidence of record.

This case should be affirmed. It is so ordered.

COSHOW, C.J., and BEAN and ROSSMAN, JJ., concur.