#### Bardon, Appellant, vs. O’Brien, Respondent.

*April 1*

October *5, 1909.*

*Deeds: Construction: Reservation or exception: Crowing timber.*

In a conveyance of land, a clause “reserving the pine and cedar timber now growing or being thereon and the right to cut and remove the same” is an exception, not a reservation. The timber remains the property of the grantor, together with a right in so much of the soil as is necessary to sustain it, and he is not bound to remove it within a reasonable time.

Appeal from a judgment of tbe circuit court for, Douglas coiinty: A. J. YiNJE, Circuit Judge.

*Reversed.*

This action was brought to recover the value of pine and cedar timber which had been cut by the defendant from the N. E. *i*of section 23, town 48 N., range 10 W., in Douglas county, and which the plaintiff claimed he owned under a reservation in a deed made by him to Michael Murray, dated January 10, 1894, which reservation reads as follows: “Reserving the pine and cedar timber now growing or being thereon and the right to cut and remove the same.” On January 11, 1894, Murray conveyed an undivided two-thirds of the land to one Howard, excepting the pine and cedar timber and the right to cut and remove the same, and on February 12, 1894, he quitclaimed to Howard an undivided two-thirds without - reservation. The defendant claims under mesne conveyances from Howard and wife to one E. H. Lee, and by timber deed from Lee dated November 4, 1907. No conveyance of the undivided one-third interest remaining in Murray was shown. On August 3, 1898, the plaintiff sold to William J. Conness such pine timber as Conness should cut and remove from said land by May 1, 1901. During the winters of 1898-99 and 1899-1900 one Smith cut and removed certain pine from the land under the Conness permit. None of the cedar and no other pine than that taken by Smith *192was sold by tbe plaintiff or removed under sale or permit from bim. Tbe court found as follows:

“(1) That on and prior to January 10, 1894, tbe plaintiff was tbe owner of tbe N. E. *i*of section 23, township 48' N., range 10 W., in Douglas county, Wisconsin, and of all of tbe timber tbereon; that on tbe lOtb day of January, 1894, tbe plaintiff conveyed said land to one Michael Murray by warranty deed containing tbe following reservation: 'reserving tbe pine and cedar timber now growing and being tbereon and tbe right to cut and remove tbe same;’ that tbe defendant, through mesne conveyances from and under Murray and prior to tbe cutting of any timber by bim, became tbe owner of all of tbe timber upon said land without actual-notice or knowledge of any claim on tbe part of tbe plaintiff under said reservation.

“(2) Tbe court finds that tbe defendant in tbe early part of tbe year 1907, in tbe winter, and in tbe following winter in tbe eárly part of tbe year 1908, cut and removed from tbe N. E. *i*of section 23, in township 48 N., range 10 W., pine- and cedar timber of tbe value of $375.

"(3) That tbe plaintiff did not say to John G-. Howard at any time that be bad exercised bis rights under tbe reservation, bad sold or cut tbe timber under said reservation, or anything in substance like this, and did not have tbe conversation with tbe witness John G. Howard as testified by bim.

“(4) That in tbe month of August, 1898, tbe plaintiff sold to one Conness all of tbe pine timber upon tbe land above described which should be cut within a period of two-years from date of such sale, and thereafter said Conness resold tbe same to one Smith, and said Smith thereafter, and in tbe winter of 1898 and 1899, cut over tbe land for tbe pine timber, taking off all of tbe pine timber which, in tbe usual course of business at that time, was deemed merchantable for lumbering purposes; that except as above tbe plaintiff has not sold or cut, or permitted tbe cutting of, any off tbe timber from said land.

“(5) That tbe plaintiff did not, except as to tbe pine timber sold to Conness, cut or remove, or attempt to cut or remove, tbe timber mentioned in tbe reservation, and that a-reasonable time for the cutting and removing of tbe timber *193under the reservation bad expired before tbe defendant purchased tbe timber upon said lands and before be cut or removed tbe timber or any part thereof.

“(a) That tbe plaintiff’s deed to Michael Murray, con-: taining tbe reservation of timber as set forth in tbe answer herein, was duly recorded in the office of the' register of deeds for Douglas county, Wisconsin, on tbe 12th day of January, 1894, in Boob 12 of Deeds, on page 542.

“(b) That all of tbe pine and cedar timber cut and removed by tbe defendant from said land was situated or growing thereon at tbe time of said reservation, and that none of the cedar timber situated or growing upon said land at tbe time of said reservation was ever cut or removed by the plaintiff or by any one claiming under him under said reservation.

“(c) That said land at all times remained vacant and unoccupied, except as it was occupied for logging purposes by one Smith under tbe Conness permit in the winter of' 1898-99, and temporarily by tbe defendant in the winters of 1906 — 7 and 1907 — 8, in die removal of the timber thereon.

“(d) That said pine and cedar timber, while remaining on the land, did not interfere with any proposed or attempted use of tbe land by tbe owners thereof.

“(e) That said pine and cedar timber so cut by tbe defendant constituted a very small part of tbe total timber on said land, and could not have been removed economically if logged separately from other timber.

“(f) That no logging operations bad taken place on said land between tbe removal of certain pine under tbe Conness, permit and tbe logging by tbe defendant in tbe winters aforesaid.

“(g) That there was no oral or written agreement at any time between plaintiff and said Murray, or those claiming under tbe latter, relating to tbe removal of tbe timber by plaintiff, other than such as is contained in tbe deed to said Murray.

“(b) That tbe plaintiff was never notified or requested by tbe owners of said land to remove said timber.”

And as conclusions of law tbe court found:

“(1) That the proper construction of tbe reservation in tbe conveyance by tbe plaintiff to Michael Murray on January *19410, 1894, in tbe light of the' circumstances and in accordance with the intention of the parties, is that the plaintiff reserved all the pine and cedar timber upon said land which he should cut and remove within a reasonable time after such conveyance, and that, a reasonable time having expired prior to the cutting of any of the timber by the defendant, the plaintiff had no title thereto or interest therein.

“(2) That the plaintiff is not estopped from asserting title to the timber under said reservation by reason of any conversation with John G-. Howard or any other person.

“(3) That the plaintiff is not entitled to recover in this action, but the defendant is entitled to judgment dismissing the action upon the merits, with costs.”

Appellant filed exceptions to the findings of fact and conclusions of law, and judgment was entered in favor of the defendant, dismissing the action upon the merits, from which this appeal was taken.

For the appellant there was a brief by *W. E. Pieicering*and *W. B. Kellogg,*and oral argument by *Mr. Kellogg.*

For the respondent there was a brief by *Luse, Powell & Luse,*and oral argument by *L. K. Luse.*

The following opinion was filed April 20, 1909:

KbewiN, J.

The vital question in this case is whether, under the clause in the deed reserving the pine and cedar timber, the grantor was bound to remove it within a reasonable time. There is considerable conflict of authority on the question, many cases holding that such a clause amounts to a reservation and not an exception, and that the timber reserved is only such as shall be removed within a reasonable time, while others hold that such a clause amounts to an exception of the timber from the grant. The phrase “excepting and reserving” is commonly used in deeds, and is sometimes held to amount to an exception of part of the property which is the subject of conveyance, and sometimes to a reservation out of the estate conveyed, depending largely *195upon tbe intention of tbe parties, tbe subject matter of tbe .grant, whether tbe thing excepted or reserved is a thing newly created out of tbe lands and tenements granted, or part of tbe property in existence and excepted therefrom. *Prichard v. Lewis,*125 Wis. 604, 104 N. W. 989. Many cases are cited by respondent from other states bolding that, under reservations similar to tbe one here, tbe timber was not excepted, but only tbe right to enter and cut it, and that when no time limit is specified for tbe entry and cutting tbe law implies that a reasonable time was intended. But tbe doctrine of this court in *Rich v. Zeilsdorff,*22 Wis. 544, is not without support in other jurisdictions. *Knotts v. Hydride,*12 Rich. Law, 314; *Sears v. Ackerman,*138 Cal. 583, 72 Pac. 171; *Whitaker v. Brown,*46 Pa. St. 197; *Winthrop v. Fairbanks,*41 Me. 307; *Clap v. Draper,*4 Mass. 266; *North Ga. Co. v. Bebee,*128 Ga. 563, 57 S. E. 873; *Starr v. Child,*5 Denio, 599; *State v. Wilson,*42 Me. 9; *Craig v. Wells,*11 N. Y. 315.

At an early day this court, in *Rich v. Zeilsdorff, supra,*held that a clause in a deed reserving to the grantor tbe timber with tbe right to enter and cut it is an exception of tbe timber with sufficient interest in the soil to sustain it. In that case tbe reservation was, “reserving tbe right to cut and-remove all tbe pine timber or trees upon said premises and half of all cedar trees upon said premises, and tbe right is hereby reserved by the party of tbe first part to enter upon said lands at any time within two years next succeeding tbe date of this instrument for tbe purpose of cutting and removing tbe trees or timber so reserved.” Tbe opinion is rested upon the fact that tbe *right to*cut and remove only is reserved and not tbe *timber.*Tbe distinction between an exception and a reservation is discussed, and tbe court said:

> “A reservation is always of something taken back out of that which is clearly granted, while an exception is some part of tbe estate not granted at all.”

*196And it is held that where the timber is reserved it is an exception, since the timber is part of the realty and would have passed to the grantee but for the exception, and that the property in the timber continues in the grantor, with the right in so much of the soil as is necessary to sustain it. In the *Rich Case*this court draws the distinction between a case where the timber is reserved and the right to cut and remove it, and holds that where the timber is reserved the reservation is an exception, since the thing reserved is a part of the realty. This doctrine was again stated and approved in *Williams v.*Jones, 131 Wis. 361, 111 N. W. 505, which case was approved in the late case of *Western L. & C. Co. v. Copher River L. Co.*138 Wis. 404, 120 N. W. 277.

It seems clear, therefore, that a reservation of timber in a deed similar to the one before us, under the decisions of this court, amounts to an exception of the timber from the grant. Many of the authorities cited by counsel for respondent support his contention, namely, that reservations similar to the one in the instant case have been held to reserve only such timber as should be cut within a reasonable time. But we think this court is committed to the doctrine that such a reservation of timber amounts to an exception from the grant of the timber thus reserved, and that the rule should not now be departed from. We must therefore hold that the pine and cedar timber was excepted from the grant and- remained the property of the plaintiff, and therefore he was entitled to judgment.

*By the Court.*— The judgment of the court below is reversed, and the cause remanded with instructions to render judgment for the plaintiff for $375 and costs.

Donan, SibbecKbe, and TimliN, *JJ.,*dissent.

A motion for a rehearing was denied October 5, 1909.