Baird v. Milford Land & Lumber Co.

Paterson, J. — On April 21, 1875, plaintiff and defendant's assignors entered into an agreement by the terms of which the former leased unto the parties of the second part certain lands for general lumbering purposes. The contract provides: “ Said parties of the second part hereby agree and bind themselves to cut and remove from said land all of the merchantable timber fit for saw-logs on said land, as follows: The first year, at least fifteen hundred thousand feet, board measure, and each and every year thereafter, two million feet, [554]board measure, and as much more as they may think proper, and pay said party of the first part therefor one dollar in United States gold coin for each and every thousand feet, board measure, of merchantable lumber so as aforesaid to be by them taken from said land; such payments to be made in equal installments, quarterly, each year; provided, however, that if said parties of the second part do not remove the amount of timber above specified to be taken in any one year, they shall, nevertheless, pay therefor; and they may remove the same in any subsequent year, without further charge or pay..... The term of this lease and the rights hereby granted shall be and continue twenty years from the date hereof, and at the expiration of said term said parties of the second part may, at their option, renew this lease for such length of time as they shall choose, on making a written demand of said party of the first part, and on paying rent, at the rate of ten dollars per year, in addition to the stumpage rent hereby reserved for each year the same shall be occupied under such renewed lease for lumbering or milling purposes.”

Plaintiff contends that under this contract he is entitled to recover five hundred dollars quarterly as rent or royalty, so long as the defendant remains in possession of the land under the contract, whether the timber has been removed or not. The court below held that the defendant was liable only for the value of the merchantable timber fit for saw-logs at one dollar per thousand, and gave judgment in favor of the plaintiff for $3,343,—the value, at one dollar per thousand, of the timber remaining on the land and not paid for, — with interest thereon and costs of suit. Plaintiff moved for a new trial, claiming that the court ought to have given him a judgment for five thousand dollars, the amount of rent at two thousand dollars per annum since the last payment. The motion was denied, and plaintiff appealed-from the order and from the judgment.

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