King v. Merriman

Mitchell, 3.

This was an action for damages for the conversion of a quantity of saw-logs. They were cut by defendants upon the land of plaintiff, in Morrison county, and transported to a boom in the Mississippi river, where they were when plaintiff demanded them from defendants. The defendants justify the cutting under a written contract executed in the autumn of 1883 between plaintiff and Leighton and Fenwick, and by the latter assigned to defendants. The two principal questions are — First, the right of defendants to cut and remove the timber; and, second, if they had no such right, the measure of plaintiff’s damages.

The first question depends entirely upon the construction of the grant made in the contract, which is “the right, privilege, and permission to enter and cut, during the logging seasons of1888-84 and 1884— 85, all the pine timber fit for saw-logs groioing upon the following described land.” That the timber in question was both cut and carried away from' the land after the expiration of the logging season of 1884-85 is conceded. It would seem plain to us that this contract was a mere license to enter, and an agreement for the sale of *52 such timber as the licensees should cut within the limit of the1 license. But, call it by what name we may, — a license to enter and cut; a sale; a conditional sale; or a contract to sell, coupled with a. license to enter, — the object and extent of the grant was only so> much timber as the grantees should cut during these two logging seasons, and no more. Contracts relating to an interest in standing timber, with an express limitation as to the time of removal, are familiar to the American courts in the timbered states. The cases arising upon them are extensively collated in the exhaustive briefs of counsel, but are too numerous to be here considered in detail.. Sometimes these contracts are in the form of conveyances of timber, sometimes of a sale, coupled with a license to enter, sometimes of a formal license to enter and cut, and again of a reservation of the timber by the grantor in the conveyance of the land. But, whatever the form, the limitation as to the time of removal has been almost-invariably held to be a limitation of the grant or reservation itself. The reasons are manifest. Any other construction would be against the expressed intention of the parties. Moreover, if the right of entry be not limited to the time fixed, it would be practically unlimited, which would amount to so serious an incumbrance upon the land as to materially interfere with the owner’s right to use or dispose of it. In a very few cases it has been held that, if the timber be cut within the time, the property is in the vendee, although not removed within the limitation of the contract. This doctrine would seem to be based upon the supposed hardships of such a case, rather than upon strict logic. But no such question arises in the present case. The suggestion of counsel, supported, perhaps, by one or two cases, that this contract was an executed sale of all the timber standing on the land, but with a limited license to enter and cut, and that if the licensee should enter and cut after the expiration of the license, while he would be guilty of a trespass on the land, yet plaintiff could not recover the value of the timber, because it was the property of defendants, would seem to us to involve a legal solecism. It would be an anomaly in the law that one man should own standing timber on the land of another, with no right of entry *53 "to cut and take it away. Such a right would certainly be a barren ■one. If the limitation of the right of entry is of any effect at all, it •must operate as a limitation upon the grant itself.

There are other provisions in this contract which in our judgment corroborate our construction of the grant, and are opposed to the idea that the parties intended it as a present unconditional sale •of all the standing timber on the land. These will be obvious upon an examination of the instrument, and need not be here referred to. There are two, however, upon which defendants especially rely .-as being in favor of their construction, and upon which the court -below laid some stress. The first is that to the effect that the grantees ¡should enter upon the land as soon as the logging season commenced, with sufficient men and teams to cut and haul the timber upon the land suitable for saw-logs, and to cut the same clean, acre by acre, .as they went, without waste, and with as little damage as practicable to the young timber. Evidently the parties used a printed blank specially adapted to ordinary sales of stumpage by the thousand, .and endeavored to alter it so as to express their agreement. The result is that some things are left in which are not particularly applicable to a transaction like the present. But taking it as it stands, •and whether we construe this provision as a covenant or a condition, we can see nothing in it necessarily inconsistent with the limitation of the grant by the limitation as to time. The other pro-vision relied on by defendants is that which provides for the payment of a gross sum in consideration of the grant. It is in these words: “For the logs so to he cut as aforesaid,” the parties of the .second part “will pay, or cause to be paid, to the party of the first part, as stumpage on said logs, the aggregate sum of $7,750.” This •expressly states for what this is to be paid, viz., “for the logs so to be cut as aforesaid.” And we can see no reason why parties may not agree to pay or accept a gross sum for the timber which :may be cut within a limited time, based, as it may be, upon an estimate of what could probably be cut within that time. Nor is there ¡any controlling reason why they might not fix the amount, as defendants offered to prove in this case, upon an estimate of the value of .all the timber standing upon the land. The fact that the parties *54 anticipated, as they probably did in this case, that the time fixed, in the contract might be sufficient to enable the grantees or licensees-to cut all the timber, is not at all inconsistent with a limitation of the grant by the limitation of time for cutting.

2. Defendants offered to prove that before the contract was made there was an examination of the amount of timber on the land, and that the sum-of $7,750 was arrived at from a computation of the value of all the timber according to this estimate. For reasons already suggested, this would have been wholly immaterial if proved;it was also incompetent. The principle upon which evidence of surrounding circumstances is admissible in the exposition of written contracts is that the court may be placed, as near as possible, in the situation of the parties whose language is to be interpreted. But such evidence is not admissible to prove an unexpressed intention of the parties, or their prior negotiations, which must be deemed to be merged in the written instrument. Its use is limited simply to develop and throw light upon the real meaning of that which is written, in case of ambiguity arising from the face of the instrument. No-such ambiguity' existed in this case. The evidence was properly excluded.

■ 8. The only other question is the measure of damages. By the. cases of Whitney v. Huntington, 37 Minn. 197 , ( 33 N. W. Rep. 561 ,) and Nesbitt v. St. Paul Lumber Co., 21 Minn. 491 , as the latter is limited or qualified by the former, this court has adopted the following rules upon this subject as applicable to cases of this kind: First, where the defendant is a wilful trespasser, the full value of the property at the time and place of demand; second, where he is an unintentional or mistaken trespasser, or, as expressed in Whitney v. Huntington , where he honestly and reasonably believed that bis conduct was rightful, the value of the property at the time it was taken, — that, is, the value of the timber standing; third, if the defendant is an in-1 nocent purchaser from a wilful trespasser, the value of the property at the time of such purchase. These rules may not be logically consistent with each other, but in practice they perhaps work as equitably as any that could be adopted, and seem to be in accord with the-prevailing doctrine both in this country and England. See Wooden- *55 Ware Co. v. U. S., 106 U. S. 432 , (1 Sup. Ct. Rep. 398.) It was also decided in Whitney v. Huntington, supra, that actual notice of the adverse claim of the true owner is not inconsistent with good faith on part of the trespasser, using the term in the sense, in which it is often used, of the absence of wilful or intentional wrong or bad motive. Such honesty of purpose is not inconsistent with knowledge of all the facts out of which the claim of the true owner arises, but where a party acts under an honest and reasonable mistake as to the legal rights which grow out of these facts. Such was the case in Whitney v. Huntington, supra; also in Jegon v. Vivian, 6 Ch. App. 742. In the exclusion of evidence the court below proceeded upon the idea that notice of plaintiff’s claim was inconsistent with good faith in the sense referred to, or, what amounts to the same thing in this case, that such notice necessarily rendered defendants wilful trespassers. The evidence as to the honesty of purpose and intent on part of defendants ought to have been admitted, and the question at least submitted to the jury, under proper instructions.

■ For this reason the order granting a new trial must be affirmed.