ARK.] PROBST V. YOUNG. 233 • PROBST V. YOUNG. 4-2982
Opinion delivered April 17, 1933. 1. LOGS AND LOGGING—RELEASE OF TIMBER RIGHTS.-A mortgagee's release of timber rights to the mortgagor and the mortgagor's quitclaim deed of all his rights; title and interest in land to the •
234 PEASBST V . Yourra. [187 grantee conveyed all— his timber rights without limitation as tO-the time of removal. LOGS AND LOGGING—TIME TO REMOVE TIMBER.—A deed to standfng merchantable timber which specifies no tline for its removal convey§ a terminable estate in the timber, which ends when a reasonable time for removal has expired. 3. LOGS AND LOGGING—TIME TO REMOVE TIMBER.—Where. a mOrtgagor, obtaining a release of timber rights from the mortgagee, conveyed the standing timber to another with a right to remove within 5 .years, and then conveyed all his rights in the land to defendant, defendant'S delay of 15 years in removing the timber after expiration of five years held to terminate the right to remove the timber as to parties claiming under the foreclosed mortgage. Appeal from Marion. Chancery Court ;* Sam Wil-liaMs, , Chancellor ; 'reversed. STATEMENT BY THE COURT. . This suit was ,institutea by appellants against: the. appellee in the: Marion Chancery Court to . quiet and confirm their title to . certain. lands. It was alleged, and the testimony showed, . that appellants .acquired title to all of the lands in controversy by mesne conveyances from the United States Government, and appellants' immediate predecessor in . title .was . on D. H. N. Dodd or . Neal Dodd. On August 7, 1908, and • at a time when the said D. H. N. Dodd owned the lands, .he made, executed, acknowledged and delivered to Helen P. Wilber a mortgage. to. secure. the payment. Of a certain note due. two years after date ; this note \-V-as Snot paid, and on October 25, 1 , 9 . 1 h 2 e , 'gave as additional security a_mortgage on certain. other lands,.. reserving to himself certain timber rights; on October 26, 1912, Helen P. Wilber ' , mortgagee, executed and acknowledged' a power of attorney, in which Chas. M. Green, of Harrison, was appointed “attorney in fact to collect any money due, release or a§sign mortgages and satisfy same of record and to do and perform all such other matters as may be necessary and expedient for the purpose of carrying out the objects above mentioned, and I hereby ratify and confirm all that my sa_id agent may do in said premises " On . 0ctober 3-1, 1912, Chas..lVI. Green, as attorney in fact for Helen P. Wilber, executed a release of all the 'timbers on the mortgaged landS for the purpose uf permitting the 'said Neal Dodd
ARK. PROBST V., YOUNG. 235 to sell and convey the same; on November. 2, 1912, Neal Dodd sold and conveyed all pine timber upon said lands to the H. W. Redus ,Lumber Company, in which deed a term of five years was allwed to the grantee to cut. and remove the same; on February•27, 1915, the said D. H. N. Dodd executed and delivered to appellee; Gils Young, a quitclaim deed to all of his right, title and interest in and to said lands; on July126, 1915, Helen P. Wilber, Mortgagee, brought suit in foreclosure against all of said lands, and in due course the same-was condemned, ,the sale was effected and duly approved. • Appellee,. Gus :Young,- was not a party to ;this foreclosure suit. Helen P. Wilber, , mortgagee, became the_purchaser of said,lands at said - commissioner's sale, and, on, the: 21.st day of June, 1922, appellants . purchased the, same and.received a deed there-for, and . since said time have paid, all taxes, accruing thereon. The. lands ! .are uninclosed and Unoccupied. • It waS sti -Pulated by ; counsel . in . the ' trial court ,`! that all Of Said lands had béen . assessed on the real estate fax books to FlorenCe . Probst and George C: Prolz;st . and .to Helen P. Wilber, their grantor, for :the; year 1917,- and that they have paid the taxes assessed against said lands fOr eaCh Of said years thereafter to the present time. The trial eOurt conStrued the Green release of Oc-tOter 31, 1912, the deed Of date February 27, 1915, from Dodd to appellee, Yoling, and the:thriber . deed from Dodd to Redus Lumber CoMijany of 'November 2; 1912, as a severance of the -thither 'rights', and further' held that Gus .Yolirig;'appellee;- only had 'a reasonable time in Which to remOVe• the' tiMber frOm . said land§ 'from and -after 'NO-VeMber 2; 1917; the` court' further held that a reasonable tinier had- not-exiiired 'on the' . date the-• decree WnS ren-•Cler6c1; -fdr' that 'iasOn : appellee', 'YOUng, Shonld be given, one year- froni"the dale of the decree -in which to remove the timbers from said lands. From the decree giving appellee one year additional dine to remove said tiinbe .1 r ,,This appeal is,prosecuted. W. F. Reeves, for appellant. • JoHNsoN; C. J., (after stating the facts). We 'think • the trial court. erred -in giving appellee, Gus Young, one ,year, additional time in which to, cut and,remove the tim-
_ 236 PROBST V. YOUNG. [187 bers from the lands in controversy. The release of the timber rights from the Wilber mortgage made on October 31, 1912, and the timber deed from Dodd to the Redus Lumber Company of date November 2, 1912, and the quitclaim deed executed by Dodd to the appellee, Young, in 1915, when construed together, had the same effect as if Dodd had reserved in himself the timber rights in the first instance and had executed a separate timber deed thereto. This court has held : "The exception of timber (in a deed) is the same in effect as a reservation, and the effect would have been the same if there had been an absolute conveyance of the land to appellee without any exception or reservation, and then a reconveyance of the timber." Ozani--Graysonia Lumber Company v. Swearingen, 168 Ark. 595, 271 S. W. 6.. The Green release of October 31, 1912, and the quit-claim deed from Dodd to Young of February 27, 1915, had the effect of a conveyance of all the timber rights of Dodd in and to the lands described in said deed . with no limitation on the time of removal of such timber. This court has frequently held that a deed to standing merchantable timber which specifies no time for its -removal conveys a terminable estate in the limber, which ends when a reasonable time for the removal of such timber has expired. Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801; Earl v. Harris, 99 Ark. 112, 137 S. W. 806. When the conveyances in the instant case are read in the light of "a reasonable time to remove," the then pertinent question for determination is whether or not that time had expired prior to the filing of this suit. The Redus Lumber Company deed expired on November 2, 1917, therefore it became the duty of the appellee to make iinmediate arrangements for the removal of the timbers from said lands within a reasonable time thereafter. Ap-pellee permitted almost fifteen years to elapse prior to the bringing of this suit, ' and made no preparation for the removal of the timbers from said lands. There was no testimony presented in this record as to the accessibility or inaccessibility of the timber to market, neither did appellee attempt to show that he had used any diligence
whateVer in cutting or removing the timber. • We think that a delay of fifteen years, under the circumstances . in this case, is nnreasonable. . This .conrt , held in Dumn v. Forrester,181 Ark. 696, 27 S. W. .(2d). 1005, " The grantee. waited over twenty years , before beginning to cut and remove the timber. Such a length of tithe was -unreasonable. It doe§ not make any difference that it would not have been profitable •to have begun Operations sooner. While no hard and fast rule should • be laid down, and each case must depend upon its own particular . facts, Ave , are of the opinion that .2. 0 . years . were toe long , to wait in the present case." , ' This langnage has applic gion to the . facts in this . _case. .. The actual -severance,of the timber rights from the fee simple title..occurred , on November 2, 1912, almost twenty years before • the decree was entered in this. case., The .Redus Luthber Company • did not, remove tbe _timber, within the five years given it, and,. when the time for renioval given to the Redus Lumber Company is added to tile tithe which appellee Young has permitted to expire, the two periods aggregate approximately. twenty years. This . length of time- is unreasonable . under the facts and circumstances in this case. No additional time should have been given appellee. in which to cut and remove the timbers from this land, but, on the contrary, the chancellor should have quieted and confirmed appellants' title and canceled the outstanding quitclaim deed . held by appellee, Young. . Pox. .the error. indicated, the decree of the Marion Chancery Court is reversed, and the cause remanded with directions that a decree be entered in COnformity with law and not indensiStent .with this opinion.
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