Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-19
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said hemlock bark and hemlock
trees or logs from the land during
the term aforesaid without being liza
BILE for trespass." If it was held that
this amounted only to a grant of
such trees and bark as should be cut
and removed within the term, the
court saying '"To admit the con-
struction given by the defendants
counsel, and consider such a permits
sion as a sale of the trees, to be cut
and carried away at the good pleas
ure of the purchaser, and without
any reference to the limitation, in
point of time, specified in the permit.
would be highly injurious in it's con-
sequences. 1t would deprive the
owner of the land of the privilege of
%cultivating it and rendering it pro-
ductive thus occasioning public in
convenience and injury, and, in fact,
1t would amount to an indefinite per-
mission"
In the case at bar it appears that
the river bottom across which logs
must be transported TO get them to
market Is composed of a productive
soil, the occupation of which by de-
PENDANTS for logging operations
would materially Interfere with its
Improvement and cultivation.
In Mcintyre V. Barnard, 1 Sand
ford's Chan. so, which is a we'll con-
sidered and instructive case, the
deed conveyed to the grantees "all
the pine timber standing or being on
the premises II Il + together with
the right of entering upon the land
until January 1, 1S41, to cut and re-
move said timber" The vice chan
cellor said: ut is admitted, that if
this clause has not been inserted, a
right of entry would have passed by
the instrument, commensurate with
the removal of all the timber. Why
then was it inserted? The parties
could not have designed to subject
the grantees to actions of trespass,
in removing their own property from
the premises. The complainant could
not have stipulated for such an alb
surd proposition, nor the grantees
have assented to it. Nor is it credi-
BILE that the parties expected the
whole of the pine logs, $4,000 in num-
Der to be removed by January, 1S41.
Tho conclusion Y11ncf Coficfn ntOrxy IN
me is that the clause in question
was designed to limit the whole
grant; and that the object of the
grant was the sale of all the pine
logs which should be taken off by
January, 1871, and nothing beyond
that. The compliments agent,
doubtless, %supposing it to be imprac-
ticable for the grantees to remove
one quarter of the timber within the
stipulated period, and the grantees,
relying upon their own diligence and
eXertions to get off all that they
could, and thus enhance the profit
of the enterprise" The court in this
case enjoined the defendants from
cutting more timber or removing that
already cut, and the case is not only
an authority in favor of the princi-
pal contention of the plaintiffs but
also sustains the subsidiary one that
equity will interfere to prevent the
continuous and repeated trespasses
involved in an attempt to unlawfully
carry on protracted logging opera
tons we the land of another.
Allen & Nelson Mill Co. v. Vaughn,
81 Wash. 16 is a case exactly in line
with plaintiffs contention here and
coming from the court of an adjoin-
ing state where conditions are the
same as here, 1t is of great value,
In the above case there was an abb
solute conveyance of the timber on
a certain tract of land for a consid-
GRAFTON of $4,000 with this condition
at is further agreed that said par
ties of the second part shall have
three years from and after the date
hereof within which to remove said
timber" There was no reversion OF
forfeiture clause of any kind. The
purchasers did just as the defendants
in this case, they cut down the stand.
ing trees before the expiration of the
time limit and claimed the right tt
remove them afterwards. The plain.
tiffs who were successors to the title
of the original grantors brought sui
to enjoin the unlawful cutting an(
removal of the timber, and the low
err court held, as the defendants il
this case now contend, that the pur
chaser had no right to cut timber af
ter the expiration of the time limi'
fixed in the deed but that they had
right to remove timber which wa'
lying on the ground and which ha(
been cut before the three years ha(
elapsed. The supreme court in al
opinion which seems to the writel
unanswerable in it's reasoning, re
versed the lower court and held tina
the right of removal terminated will
the expiration of the time limit
We quote from the opinion the fol
lowing; "Our view is that this con,
tract should be construed as any 9th.
er contract for the purpose of ascer
tanning what was intended by thu
parties that the purchaser SHOULD
have the three years specified for
removal of the timber whether stand
ing or lying down, and that at the
expiration of that time his interes
IN the timber should cease and tina.
the title to the timber would then b,
in the person owning the land. Wha
possible interest would the selleI
have In the date when the timbe,
should be cut down, If there was t
be no limit on the time of its re
moval from the land? That woul,
be a matter which would be of inter
est only to the buyer, and concerning
which he would not be likely to coun
sci or contract with the SELLER. Ii