Kaul v. Weed

Deed — Grant—Timber—Grant of Umber — Definition of limber. Where an owner of timber by deed grants “ all and all manner of timber down and standing save and except hemlock timber,” and it appears that the grantees cut all the trees, except the hemlock, over and above certain well recognized diameters, and it also appears that at the time the deed was executed there were no chemical factories in the county, and that no chemical or pulp wood was out by the grantees until after the trees had been cut for timber purposes and the logs removed, the grantees are liable for damages for cutting and removing trees for chemical and pulp purposes.

Appeal, No. 15, Jan. T., 1902, by defendant, from judgment of C. P. Elk Co., April. T., 1901, No. 73, on trial by court without a jury in case of Andrew Kaul et al. v. W. S. Weed & Company. Trespass to recover damages for the wrongful cutting of trees. The case was tried by Meyer, P. J. Prom the record it appeared that by deed dated September 23, 1890, S. S. Bullis and wife conveyed to W. S. Weed & Company, “ All that the undivided one-half part, portion and interest of, in and to all and all manner of timber down and standing, save and except the hemlock timber in and on all and singular those certain pieces, parcels or tracts of land,” etc. And which deed provided: “ It being the intention of the .party of the first part to convey to the parties of the second part, their heirs and assigns, all the several kinds of timber herein specified on all of said lands so conveyed, subject nevertheless to the rights of the party of the first part, his heirs and assigns, to enter said lands for the purpose of cutting, peeling, storing and removing therefrom the hemlock bark and timber, and the right to build, maintain, construct and operate all such railroads, wagon roads, structures and appliances as they may deem proper for the removal of the same. And it is expressly understood and agreed by and between the parties hereto that the parties of the second part shall so operate and remove the lumber timber sold them in such manner as will in nowise interfere with the removal of said hemlock timber and bark.” S. S. Bullís and wife by deed dated October 23, 1891, conveyed to W. S. Weed & Company the remaining undivided one half of the timber upon said lands in the same language and upon the same terms and conditions as stated in the deed of September 23, 1890. The title to the land subsequently became vested in plaintiffs. The court found further facts to be as follows: 9. That W. S. Weed & Company, defendants, were wholesale lumbermen engaged in the hardwood lumber business at Bradford, Pennsylvania, and on September 23, 1890, purchased the undivided one-half interest in certain timber upon the lands in controversy and made a contract with S. S. Bullís, the owner of the other undivided one-half interest therein, and entered upon said lands in pursuance of said deed and contract and commenced operations thereon, by cutting into saw logs timber suitable for lumber, and manufacturing the same into lumber upon their mills or mills of their jobbers and continued to do so until October, 1893, before they cut any chemical wood or pulp wood. That no chemical factories were erected in Elk county until 1894, and that prior to this time no chemical wood had been sold or marketed from these lands. That no chemical wood or pulp wood was cut upon any of the lands at any time until the lands had been cut over for timber purposes and the loga removed. That in October, 1893, and annually thereafter, after the timber suitable for lumber had been cut and taken from said lands for lumber purposes, the defendants by their jobbers, again went over said lands and cut the remaining trees and wood that were not suitable for lumber into pulp wood and chemical wood and removed and sold same. That from the time defendants purchased this timber until 1898, they did not cut any beech trees for lumber purposes and that beech was not considered as timber for lumber purposes or generally used as such in the vicinity of these lands. 10. That on September 23, 1890, and October 23, 1891, the dates of defendants’ deeds, the minimum sizes for timber upon said lands were as follows: for cherry, ash and oak, eight inches in diameter at the top end of the butt log; for poplar, pine and basswood, birch and cucumber, ten inches in diameter at the top end of the butt log, and for maple twelve inches in diameter at the top end of the butt, log; and that at the dates of said deeds under the prevailing and general custom of the lumbering business in the region of these lands no trees of the kind named, under the sizes above stated were considered or used for timber or lumber purposes, and that defendants by their instructions to their jobbers and in their operations in cutting and removing said timber, recognized that only trees of the sizes named and over, were suitable for timber and lumber purposes. And that the trees under the minimum sizes named were not suitable for such purposes. 11. That there were trees and wood upon these lands on September 23,1890, the date of the defendants’ purchase of the undivided one half of the timber, and also on October 23,1891, the date of their purchase of the remaining undivided one half of the timber, that were too small in size or too inferior in .quality and shape and not suitable for lumber or timber. That S. S. Bullis, the owner of the lands and the undivided one half of the timber from September 23, 1890, to October 23, 1891, did not sell or intend to sell, nor did W. S. Weed & Company, defendants, purchase or intend to purchase or acquire title to such trees or wood by said deeds of September 23, 1890, and October 23,1891. That under the acts and declarations of the parties, and the surrounding circumstances, the parties to said deeds- intended that only such timber as was suitable for lumber should be sold and conveyed by said deeds. 12. That defendant cut and removed chemical wood from said lands amounting to 38,184.30 cords, sold stumpage for wood amounting to 6,016.835 cords and 54,171 cords of toothpick wood. 13. That the market value of chemical wood and pulp wood in 1895, on the stump was twenty-five cents per cord and in the years 1896, 1897, 1898, 1899 and 1900, the average price -was forty-five cents per cord, and that the market value of toothpick wood on the stump was one dollar per cord. 14. We find as a fact from the deeds of September 23, 1890, and October 22, 1892, and the parol evidence admitted as explanatory thereof, that the word “timber” in said deeds did not include any timber except what could be manufactured into lumber, and that chemical wood and pulp wood were not within the contemplation or intention of the parties at the time the respective deeds were executed and delivered ; nor was it intended to convey by said deeds any other timber except what might be used for manufacturing into lumber or other articles which could be made or constructed therefrom. The court entered judgment for plaintiffs for $20,967.73. Defendants appealed. Error assigned among others was in entering judgment for plaintiffs.