#### T. C. NORRIS v. M. O. GALLOWAY et al.

(Filed 31 January, 1928.)

1. Deeds and Conveyances — Timber Deeds — Construction.

Where N. and G. are grantees in a deed for standing timber upon certain lands, to be cut and removed within ten years, and thereafter N. becomes the owner of the lands, subject to the timber deed to himself and G., and N. conveys to G. the timber rights he has acquired under the former deed, referring thereto, and in his deed to the timber receives certain rights to cultivate the lands when cut over by G. and designated by him, with a further right of G. to cut and remove a certain kind of timber within two years from the first cutting: Held, G. could under the deed from N. cut the designated timber in a period of two years from the first cutting only when coming within the maximum time limit of ten years, and to this extent it was an enlargement of the right conveyed by the deed for the timber to N. and G.

*15Civil actioh, before Bowie, J., at July Term, 1927, of Haywood.

Tbe plaintiff instituted an action against tbe defendants to restrain tbe defendants from trespassing upon tbe lands in controversy and from cutting and removing timber therefrom. A temporary restraining order was issued and made returnable on 29 July, 1927. Ey consent tbe cause was beard by T. 0. Bowie, judge bolding tbe regular term of tbe Superior Court of Haywood County, wbo rendered tbe following judgment: “Tbis cause coming on to be beard upon tbe application of tbe plaintiff to continue tbe restraining order theretofore in tbis cause issued, to tbe final bearing, and both tbe plaintiff and tbe defendants consenting that tbe matters in issue be beard before Sis Honor, T. C. Bowie, judge presiding, and tbe same being beard, tbis 22 July, 1927: It is therefore ordered, considered and adjudged by tbe court that tbe restraining order heretofore issued be dissolved and that tbe plaintiff pay tbe cost of tbe action.”

From tbe foregoing judgment plaintiff appealed.

Morgan & Ward, M. G. Stamey and Jas. E. Johnson for plaintiff.

W. B. Francis and Alley & Alley for defendants.

BuogdeN, J.

On 2 March, 1920, E. W. Sharp and wife conveyed to T. C. Norris and Ml 0. Galloway, in consideration of $3,500, “all of tbe timber standing, lying and being and growing, and which might grow during tbe period hereinafter named, of- any and all kinds whatsoever” upon a certain boundary of land consisting of about 300 acres. Tbe timber deed provided that tbe grantee should have ten years from date in which to cut and remove tbe timber. Said deed also contained tbe following restrictions: “It is understood and agreed that when tbe parties of tbe second part shall have cut from any portion of said land all tbe timber and tbe wood which they desire or may desire to remove from said portion of said boundary, then tbe parties of tbe second part shall designate such portion and permit tbe parties of tbe first part to clear that portion of said land so designated and sow tbe same in grass or otherwise use that portion of said land as tbe parties of tbe first part may desire.”

On tbe same day Sharp and wife conveyed to tbe plaintiff, T. C. Norris, tbe land upon which tbe timber was growing by a proper deed of conveyance. Tbis deed contained tbe following clause: “Excepting and reserving all tbe timber on said boundary of land with tbe right to remove tbe same within ten years from date hereof, in accordance with a deed of even date herewith, for said timber by tbe parties of tbe first part to T. 0. Norris.” Tbe parties, therefore, were in tbis situation: *16Plaintiffs T. C. Norris and M. O. Galloway beld a timber deed for tbe timber of tbe kind specified on tbe land. Tbe plaintiff, Norris, tben became tbe owner of tbe land subject to tbe timber deed .to bimself and Galloway.

Thereafter, on 27 November, 1920,. Norris and wife conveyed to Galloway “their one-half interest in all tbe timber standing, lying and being and growing, and which might grow during the period, as set forth in a certain timber deed from E. W. Sharp and wife to T. 0. Norris and M. 0. Galloway.” This deed from Norris to Galloway recited that the grantee Galloway should have “the right of ingress, egress and regress, to, over and through said tract of land for the purpose of cutting and removing said timber, and also the right of sawyards for tbe setting up and operating of sawmills on said boundary for tbe period as set forth in said deed as recorded in Book 54, p. 555” (deed from Sharp and wife to Norris and Galloway). Tbe deed for tbe “one-balf interest” from Norris and Galloway contained tbe following clause: “It is understood and agreed that when tbe party of tbe second part shall have cut from any portion of said land that all tbe timber and wood wbicb be desires to cut and remove from said land, that tbe party of tbe first part shall have tbe right to clear, cultivate or sow in grass tbe land from wbicb tbe timber is removed. And tbe party of the second part shall have two years after he has cut and removed timber from any portion of said land to go back and remove any hemlock wood that he may have left when he first cut over said land, provided tbe two years come within the period as set forth in tbe deed recorded in Book 54, p. 555, heretofdre referred to. Tbe parties of tbe first part sell and convey to tbe party of tbe second part all tbeir rights and interest that they obtained in tbe said deed as recorded in Book 54, page 555, except as above set forth in this deed.”

The plaintiff contends that after he purchased the land and executed deed to Galloway for bis “one-half interest” in the timber that the clause above quoted in his deed to Galloway curtailed and restricted the right of Galloway or bis assigns to cut any timber upon said land after the expiration of two years from the first cutting. That Galloway or bis assigns bad cut over the timber more than two years ago, and hence all rights of Galloway in and to said timber bad ceased. The defendant Galloway, upon the other band, contends that the deed from Norris to him is an enlargement of his right to cut rather than a restriction. So that the merit of the case resolves itself into an examination of these contentions.

The deed from Sharp to Norris and Galloway provided that tbe grantees should have ten years within which to cut and remove “all the *17timber standing, lying and being and growing, and which might grow during the period,” etc. It was further provided therein that when the grantees had cut and removed all the timber which they desired upon any designated portion of the land, the grantors could reenter such portion so designated and hold the same in such manner and to such extent as the grantors should desire. In other words, the right to cut and remove any more timber from such portion so designated by the grantees ceased if the grantors should so desire. The deed from Norris and wife to Galloway expressly recognizes the right of the grantee to cut and remove the timber for a period of ten years, but provides that when the grantee cuts and removes all the timber which he desires from any portion of the land, thereupon the grantors shall have the right to clear, cultivate and sow in grass such portion, subject, however, to the right of the grantee to reenter such portion and remove any hemlock wood only, if such removing of such hemlock wood shall be done within two years from the first cutting and within the ten-year period.

The essential difference between the restrictions in the two deeds is this: In the Sharp deed the grantees designated the portion of land upon which all desired cutting had been done, and thereupon they could not reenter such portion for the purpose of cutting if the grantors objected. In the Norris deed, when any portion of land had been cut over, the grantors could reenter, but could not prevent the- grantee from going back upon such portion and removing hemlock wood if done within two years from the first cutting and within the ten-year period. Under this construction the covenants in the deed from Norris to Galloway t.end to enlarge rather than restrict the timber rights of defendant. So that the defendant has the right to cut and remove the specified timber for a period of ten years; provided, however, that as to such portion which has been cut over and cleared or cultivated or sowed in grass by the plaintiffs, then defendant can reenter and remove hemlock wood only, and this must he done within two years from the first cutting and within the maximum period of ten years.

We conclude upon the record that the plaintiff is not entitled to restrain the cutting of the timber, and the judgment resolving the temporary restraining order is affirmed. It is further ordered that the restraining order granted pending this appeal be, and the same is hereby dissolved.

Affirmed.