#### AUSTIN, Administrator, v. BROWN et al.

(Filed 28 April, 1926.)

1. Contracts — Deeds and Conveyances — Timber—Catting and Removing —Reverter.

A timber contract conveys all standing trees as realty, but when severed they become personalty, and where a time for the cutting and removing of the timber is fixed by the conveyance, at the expiration thereof such *625trees severed or standing as are left remaining on the lands are the property of the grantor, though the conveyance does not specify that they shall revert to him.

3. Same — Lumber.

The word “timber” which a grantee in a timber contract must remove from the lands within a stated time, does not include lumber, a manufactured product, and at the expiration of the period, the grantee may remove the same within a reasonable time, unless the contract by its terms includes the lumber as well as the timber.

3. Same — Appeal and Error — Issues.

Where the purchaser under a timber contract has taken lumber left on the premises by claim and delivery, after the time fixed for the removal by him of timber, which he has endeavored to remove within a reasonable time, it is reversible error for the court to refuse an issue as to his title to the timber, and submit only an issue of damages for its wrongful detention.

Civil action tried by Dunn, J., at December Term, 1925, of Mooee.

On. I February, 1913, Duncan "W. Brown conveyed to james ~W. Austin and his heirs and assigns “all merchantable timber, both standing and down, of pine and other varieties on the home farm oí said party of the first part, consisting of 159 acres.” Among other conditions, not pertinent, the following pertinent clause appears in the deed: “The party of the second part (James W. Austin) shall have the right to establish and operate a steam sawmill, with suitable site for same, on the above-described tract . . . and ingress and egress to' any part of said tract necessary in cutting and removal of the timber; and shall have a period of five (5) years from the date hereof for the cutting and removal of the timber herein conveyed, with the privilege of continuing such operations during a further period of five (5) years by payment to the party of the first part (Brown), his heirs or assigns, at the rate of twenty-five dollars ($25.00) per annum, each period of three months or fraction thereof to be paid for as three months. It is mutually covenanted and agreed by and between the parties to this agreement that the said party of the first part (Austin) shall have the right to enter and remove from said land his firewood, any lightwood and parts of trees left on the- ground by said party of the second part, and that this agreement terminates at the expiration of ten (10) years from date hereof, unless sooner terminated as above provided.”

The plaintiff is the surviving partner of James W. Austin, the grantee in said deed. Under and by virtue of the terms of said deed the said Austin located his sawmill on the land and began cutting the timber. Austin died 12 January, 1923, and the plaintiff is his adminis*626trator and surviving partner. D. W. Brown, tbe grantor, died also prior to I February, 1923, and tbe defendants are bis widow and bis children.

Tbe time for cutting and removing tbe timber expired I February, 1923. At tbat time tbe plaintiff bad cut all tbe timber, removed tbe logs to tbe mill where they bad been sawed into lumber, and tbe lumber stacked on sticks and in piles upon tbe land. On 8 February, tbe day after tbe time for cutting and removal bad expired, tbe defendants notified plaintiff tbat be could not go upon said land to remove tbe lumber stacked thereon by reason of tbe fact tbat tbe defendants claimed tbat tbe lumber belonged to them because it bad not been cut and removed during tbe period limited in tbe contract. • Tbe plaintiff thereupon brought this suit and instituted claim and delivery proceedings for possession of said lumber and tbe same was seized thereunder. There was a dispute between tbe parties as to tbe amount of lumber upon tbe premises.

Tbe plaintiff tendered tbe following issue: “Is tbe plaintiff tbe owner and entitled to tbe possession of tbe lumber described in tbe complaint?” Tbe court declined to tender this issue, but tendered tbe following issue: “What was tbe reasonable market value of tbe lumber at tbe time of seizure under tbe claim and delivery ?”

At tbe conclusion of plaintiff’s evidence, tbe trial judge stated to tbe jury tbat be would bold, as a matter of law, tbat tbe plaintiff bad no right to enter upon tbe land described in tbe complaint after tbe expiration of tbe term mentioned in tbe' contract and remove tbe lumber therefrom, which bad been manufactured out of tbe timber trees cut down upon said land; and tbat, as a matter of law, tbe title to said lumber upon tbe expiration of said contract vested in tbe owner of tbe land, and tbe only matter reserved to be beard was tbe value of tbe lumber seized under tbe claim and delivery proceedings.

There was judgment for tbe defendant for tbe sum of $410.00, said judgment further adjudging tbat tbe action as to plaintiff’s cause of action be nonsuited.

From tbe foregoing judgment plaintiff appealed.

S. F. Seawell for plaintiff.

U. L. Spence and J. G. Sedberry for defendants.

Brogden, J.

Tbe proposition is this: Can tbe purchaser of standing timber enter upon tbe land described in tbe contract and remove therefrom 'manufactured lumber after tbe period for “cutting and removal” prescribed in tbe contract has expired? «

Tbe construction and interpretation of timber contracts has been a fruitful source of litigation and has produced an almost unnumbered *627multitude of decisions in tbe various courts of tbe country. Tbe courts are hopelessly divided upon many pertinent questions relating to rights flowing from timber contracts, and any attempt to distinguish, reconcile or harmonize decisions upon the subject is an impossible and fruitless task.

In North Carolina it has been generally held: (1) That deeds for standing timber convey a fee-simple interest in such timber as realty, determinable as to all such timber as is not cut and removed within the time specified in the deed; (2) that upon severance of the trees from the land they become personal property; (3) that uncut timber and timber cut and not removed within the time specified in the contract becomes the property of the owner of the land, irrespective of whether the contract contains an express reverter clause or not. Bunch v. Lumber Co., 134 N. C., 116; Hawkins v. Lumber Co., 139 N. C., 160; Lumber Co. v. Corey, 140 N. C., 462; Midyette v. Grubbs, 145 N. C., 85; Hornthal v. Howcott, 154 N. C., 228; Bateman v. Lumber Co., 154 N. C., 248; Williams v. Parsons, 167 N. C., 529; Ollis v. Furniture Co., 173 N. C., 542; Williams v. Lumber Co., 174 N. C., 229; Morton v. Lumber Co., 178 N. C., 163.

The exact question presented by this appeal has not been determined by this Court. The nearest approach to a decision of the question is found in Lumber Co. v. Brown, 160 N. C., 281, in which the law was declared to be that saw logs left upon the premises at the expiration of the time designated by the contract reverted to the owner. It should be observed, however, that the actual question decided in the Brown case was that there was sufficient evidence of a sale to go to the jury. But conceding that the Brown case holds that logs left on the land reverted to the owner of the land, still the Brown case is not decisive of the question presented by this record for the plain reason that this record presents the question of manufactured lumber and not timber, trees or logs. Therefore, we come face to face with the question as to what is meant by the term “timber.” Timber means growing trees and logs. Johnson v. Truitt, 122 Ga., 327. Perhaps the clearest and most comprehensive statement of the question involved is found in the case of Hubbard v. Burton, 75 Mo., 65, and is in this language: “We have no doubt that any trees standing, or felled, and lying in their natural state upon the land, after the expiration of twelve months from the date of the contract, would belong to the vendor. But does the term ‘timber’ embrace articles manufactured out of the timber? Suppose instead of purchasing the timber for the purpose of making railroad ties, the object of the purchaser had been to manufacture barrels, buckets or shingles, would defendant have been entitled to all such manufactured articles found upon the premises, after the expiration of the specified *628time? It is evident that the object of inserting that provision in the contract was to avoid conferring upon the purchaser a right, indefinite as to time, to enter upon the land and cut down the timber — to limit the right to cut and remove the timber, or work it up, after the lapse of twelve months. We think the fair and reasonable construction of the contract is, that only the timber standing, or cut and lying upon the .ground in its natural state, was forfeited to defendants.”

The facts in the Hubbard case, supra, were that the contract provided that all timber not removed from the land within twelve months, whether cut or standing, was to be the property of the owner, and that certain railroad ties which had been manufactured prior to the expiration of the time specified in the contract, had been left upon the land, and suit was instituted to recover possession of said ties. The same definition and distinction was thus declared in Butler v. McPherson, 95 Miss., 635: "When the timber was manufactured into railroad cross-ties its use and nature changed. It was no longer timber. Its character as timber ceased when the labor of those who felled the trees, and cut the trunks thereof into appropriate lengths ceased and the labor of the manufacturer commenced. When the article is once perfected for immediate use, it is only known by its appropriate name, and is no more timber than bread is flour, or flour wheat, or mutton sheep, or beef oxen.”

Some of the courts have held that when trees have been cut into saw logs that this in itself is a removal under contracts similar to the contract in the case now under discussion. Macomber v. R. R., 108 Mich., 491; Mahan v. Clark, 219 Pa., 229; Lancaster v. Roth, 155 S. W., 597.

But however this may be, the weight of authority and the weight of reason is to the effect that when the trees are cut into logs, and the logs conveyed to a mill and manufactured into lumber, and the lumber stacked or piled upon the premises, that it ceases to be timber or standing trees, and therefore the principle of reverter does not apply. This principle has been recognized and upheld in the states of Maryland, Texas, Michigan, Maine, Georgia, Wisconsin, Pennsylvania, Missouri, Mississippi, New Hampshire, Minnesota, Kentucky, New Jersey, and Indiana: Wimbrow v. Morris, 118 Md., 91; Lancaster v. Roth, 155 S. W., 597; Macomber v. Detroit L. & N. R. R., 108 Mich., 491; Erskine v. Savage, 96 Maine, 57; Johnson v. Truitt, 122 Ga., 327; Golden v. Glock, 57 Wis., 118; Mahan v. Clark, 219 Pa., 229; Hubbard v. Burton, 75 Mo., 65; Butler v. McPherson, 95 Miss., 635; Tuttle v. Pingree, 75 N. D., 288; Pryor v. International Lumber Co. (Minn.), 195 N. W., 772; Irons v. Webb, 41 N. J. Law, 203; Halstead v. Jesup, 150 Ind., 85.

*629Tbe contrary view is discussed in tbe case of Smith v. Wells (Mass., 1924), 145 N. E., 50, wbicb cites'authorities in New York and Virginia. But, upon tbe other band, in tbe case of Glark v. Aldrich, beard in tbe District Court of tbe IT. S., for tbe District of Massachusetts and reported. in 278 Fed., 941, it is held that sawed lumber, slabs and cord wood left upon tbe land at tbe termination of tbe time specified in tbe contract was personal property and could not be forfeited to tbe owner of tbe land unless such intention was plainly expressed in tbe contract. Tbe opinion uses this language: “We have no occasion to undertake to reconcile tbe numerous and somewhat conflicting rulings as to contracts for tbe cutting and removal of timber. It is enough to note that tbe overwhelming weight of authority applicable to such a contract as was made by these parties is in support of tbe view taken by tbe court below,” citing Wimbrow v. Morris, 118 Md., 91, and quoting with approval from that case as follows: “It seems to be tbe rule even in those jurisdictions wbicb bold that all tbe rights of tbe parties to tbe timber terminated at tbe expiration of tbe time limit, if tbe timber is manufactured into lumber tbe owner of tbe timber does not lose bis right thereto by tbe expiration of tbe time limit.”

Tbe various shades of definition and tbe reasons supporting tbe divergent views of tbe courts are collected in exhaustive notes contained in 15 A. L. R., 41; and 31 A. L. R., 944.

Tbe contract in tbe case now under consideration specified a period for “cutting and removal of tbe timber.” It further provided that tbe purchaser of tbe timber should operate a sawmill upon tbe land, and it was therefore in contemplation of tbe parties that tbe purchaser of tbe timber should have tbe right to saw during tbe entire period and until tbe last moment thereof if be so desired, and this very right would necessarily imply tbe privilege of removing tbe completed product from tbe premises.

It is urged that tbe principles of law upon wbicb this decision is based, modify tbe contract of tbe parties by extending tbe time wbicb tbe parties bad agreed upon for tbe cutting and removal of tbe timber. This argument is not based upon sound reason because tbe parties contracted that timber should be cut and removed. Tbe timber was cut and removed when it went through tbe mill and came out a manufactured product, and was therefore not embraced in tbe contract. Tbe decisive principle is thus expressed in Taylor-Brown Timber Co. v. Wolfe Creek Coal Co. (Ky.), 107 S. W., 733, cited in defendants’ brief:

> “In respect to tbe lumber on tbe land, we think tbe lower court correctly ruled that appellant should have tbe right to remove it upon tbe ground that it is not embraced by tbe contract.- There is no limitation in tbe contract as to tbe time tbe lumber should be removed from tbe *630land. Nothing is said about it, and the time limit as to trees and logs does not embrace the manufactured product. The lumber was a chattel, left by the appellant on the land, and it should he allowed a reasonable time in which to remove it.”

It was therefore error for the trial judge to hold, as a matter of law, that the plaintiff had no right to enter upon the lands described in the complaint for the purpose of moving the lumber stacked thereon, and it was also error to decline to submit the issue tendered by the plaintiff as to the ownership of said property. If the property belonged to plaintiff, we hold that he had a right to go upon the land and remove it within a reasonable time. Therefore, there must be a

New trial.