Harville v. Rice

[49]

DRAPER, P. J.

Defendants appeal from the judgment in an action for declaratory relief. The case turns on construction of a contract.

In 1951, plaintiffs sold to defendants some 24,000 acres of land, but specifically excepted the timber thereon and reserved it to themselves. When plaintiffs owned both land and timber, they had from time to time sold timber to loggers who were given the right to enter upon the land to remove it. This practice continued after sale of the land to defendants. Disputes arose, largely relating to the question whether plaintiffs retained title to all the timber, or only to that which had been cruised before the conveyance. These disputes were settled by an “agreement of compromise” executed in April, 1954. This agreement recognized that plaintiffs’ “timber rights and ownership” extended to all timber, whether or not cruised. Plaintiffs agreed that their title and rights in the timber should cease as of January 1, 1961.

The agreement required plaintiffs to continue paying all taxes on the timber; reaffirmed plaintiffs ’ right to contract for the sale and removal of timber; provided for termination of that right on the agreed date; and further provided that all contracts for such removal should include certain clauses specifically for the benefit of defendants, principally to minimize interference with their ranching operations. Among these clauses were requirements that each logger contracting with plaintiffs should agree to log “in a consistent, complete and progressive manner,” and to “log clean as he goes and to remove all merchantable timber as he goes, without hi-grading, and to not move his operations indiscriminently

[sic].”

In October 1954, plaintiffs sold the timber on much of the land to one Emmerson, limiting his right of removal to January 1, 1960, and providing that title to all timber not removed by that date should “revert to and revest in” plaintiffs. The required clauses for defendants’ benefit were included. Upon expiration of the term of Emmerson’s contract, there remained on the land a substantial amount of timber he had not removed. Most of this timber was in patches or stands which Emmerson had by-passed or “leapfrogged” in his logging. Plaintiffs sold this timber to one Bullman, limiting to December 31, 1960, his right to remove it.