Butler v. McPherson

Deeds. Timber reserved. Limited time to cut and remove. Gross-ties manuactured but not removed. Where a deed to land reserved in the grantor the right and title to all timber thereon which he might remove within a designated time, but conveyed all timber thereon not removed in that time:— (a) The grantee was the owner of all timber standing, growing and being on the land at the expiration of the timé, including timber cut and lying in its natural state; but (Z>) He was not the owner of railroad cross-ties, manufactured by the grantor within the time, the greater part of their value being the result of skill and labor expended in their manufacture, although made from timber on the land and left thereon after the expiration of the time.

Prom the circuit court of Quitman county. Hon. Samuel 0. Cook, Judge. Butler and another, appellants, copartners under the name Butler & Barrow, were plaintiffs in the court below; McPherson and another, appellees, copartners under the name McPherson Brothers, were defendants there. Prom a judgment in defendants’ favor, .predicated of a peremptory instruction, the plaintiffs appealed to the supreme court. The facts are stated in the opinion of the court. Prior to the decision by this court of the case of Olark v. Ingram, 90 Miss. 479, 43 South. 813, it seemed to be an open question in this state whether a purchaser of timber with a limited term for removal lost his right and title to the timber by a failure to remove it within the time limited, where the timber had been actually severed from the soil within the time. There is much conflict in the authorities on this point and a fine distinction is drawn between a reservation and exception of the timber and a deed conveying land. I take it that the same distinction applies where there is a sale of the timber or a grant of the right to cnt the timber. I know of no case in which the distinction is more clearly and satisfactorily drawn than Rich v. Zeilsdorf, 22 Wis. 24, 99 Am. Dec. 81. My understanding of Ciarle v. Ingram is that where the contract clearly expresses the intention of the parties it will be rigidly enforced, and that both the right and remedy must cease at the time agreed upon. Whether the language of the deed in this case is a reservation or exception, I take it to be no stronger in favor of the right claimed by the appellants than was the language in Ciarle v. Ingram, and if these appellants had cut down the trees and cut them into saw logs that case would be decisive of this and we would not ask any review by this court. I do not understand this court to hold in that case that one party may not have personal property upon the land of another, even without the right to go upon the land of another and remove it, or that the personal property of one party by being upon the land of another becomes, in virtue of that fact alone, the prop^ erty of the owner of the land. On this point I call the attention of the court especially to Irons v. Webb, 32 Am. Bep. 135. In .the Cla/rle case this court holds that the cutting down of trees and cutting them into saw logs does not amount to removal within the language of the contract I take that to be the full extent of the holding there. If, however, the logs in that case, had been sawed into lumber, and left piled upon the land, it is hardly conceivable that the court would have held that the lumber belonged to the owners of the land. Here we have a case that strong and even stronger. Lumber is not a finished product and requires additional labor to make it so, yet in that case or this, I apprehend that the court would not hold that under a contract like the one there or here, the owner of the land would get the lumber. In the present case the timber was not worked into plank which would require additional labor in the using, but was made into cross-ties which are a finished product and require no other labor in the using. There had been expended upon these cross-ties fifteen cents per tie which more than quadruples the value of the material used, according-to the proof in the case, while the sawing into lumber would a little more than double the value. The old illustration of Mr. Blackstone of the naked canvas- and the canvas after a costly picture had been painted upon it is precisely applicable here. The cross-ties in this case had not only been made but had been inspected, paid for and branded. The supreme court of Wisconsin in Golden v. Gloclc,. 46 Am. Bep. 32, draws the clear distinction and holds that where the logs have been made into stave bolts, and. the character is essentially changed, they cannot be held by the owner of the land. This is the same" court which held in Rich v. Zeilsdorf, supra., that the cutting of the trees into saw logs did not-give the title to the party cutting them, just as this court held in the Glarh case. To the same effect is Hubbard v.- Burton,. 71 Mo. 65. [The brief of counsel for appellee was lost from the record before it reached the reporter, hence a synopsis thereof is not. given.]