Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-19
DAILY CAPITAL JOURNAL SALEM. oREooS. MONDAY, JUNE 10. 1911.

many of the contracts which have
been construed by the courts the
language is cut and remove but 1t
is evident that the main considera-
ton, even in those cases, is the re-
moval. Just how the removal is to
be effected is not of interest to the
seller. The great desideratum to
him is the recovery of the possession
of his land at the time specified. A
man might reasonably be willing to
sell timber on land at a certain price
if the unobstructed possession of the
land were assured to him in three
years, when he would demand a
greater price, or perhaps refuse to
sell at all, if he could not regain the
premises for five years or for some
longer period. He is not in any way
benefited by cutting the timber down
and numbering the ground with fall
len trees. So far as his use Of the
ground is concerned, the trees mad
better be left standing
Many of the cases are also based
upon the conclusion that a provision
of this kind is a covenant rather
than a forfeiture, but this is dealing
with definitions rather than princi-
pies for the carrying out of cove
nants sometimes necessarily works
as a forfeiture. Neither is it profita-
BILE to enter into a discussion of tech
nical distinction between real estate
and personal property. Such dis
tinctions tend to lead away from the
essential idea, viz: What was the in
tention of the parties to the contract
under consideration = = =. All
these technical questions have been
determined by this court in Lertonen
V. Marysville & Power Company =
= =. There it was said Whether
the reservation of the timber made
1t, in legal effect personal property
or otherwise, makes no difference. 1t is
immaterial what the theoretical char
acter becomes. The contract of res
ervation provides that it shall be re-
moved within a given time. If it was
the Intention of the parties that the
timber might be removed after that
time, the limitation means nothing
and was misleading y = = Ger
tainly the respondent cannot escape
the important provision providing
the time within which he is permitted
to remove the timber. He knew
that, under the plain provisions of
his contract-and it is difficult to see
how it could be made plainer-he
had three years from the date of the
contract in which to remove the tim
Der. His action in cutting more tim
Der that he could or would remove
in that time vas an evasion of both
the letter and spirit of his contract.
and he must Suffer the consequences
of his own failure to comply with the
contract. This construction also
does away with the illogical holding
of some of the courts that, notwlth-
standing the fact that the contract
must be construed as preventing the
removal within the time specified yet
the purchaser has a right to the
property even though asserting DOM
inion over the property places him
l n the role Of a trespasser."
We have quoted thus at length
from the foregoing opinion because
it comes from the court of a state
where logging is one of the great in
dustries and because it answers so
completely every contention made by
defendants in the case at bar. 1t is
common knowledge that there are
many contracts of the character of
the on here in litigation now in exist
ence in this state and in view of the
future Importance of the logging in
dustry many more such contracts
will be entered into. Realizing,
therefore, the importance of this case
in the bearing that it may have upon
present and future contracts of the
same character we have devoted
more than usual time and space to
its discussion, to the end that here
after parties to such contracts NAV
fully comprehend their import and
the respective rights and obligations
arising therefrom.
There remains but n more Dues
ton to be disposed of, namely, the
objection that equity will not inter
fere in cases of this character, but
will leave the plaintiff to his remedy
at law. The equity will interfere to
prevent a continuous trespass or re-
peatcd trespasses involving a multi
plicity of suits is elementary. It's
jurisdiction has been invoked in
many cases of this character, cited in
this opinion and is upheld in Roots
V. Boring Junction Lumber Com
pany, so Or. 29S.
The decree of the circuit court is
affirmed.
Mr.. Justice Burnett took no part
in this decision.
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