WHITTAKER v. THOMPSON (1958)

This is an appeal by defendants from an adverse judgment in an action to recover the value of timber alleged to have been removed from plaintiffs' property under a timber sales agreement.

The complaint alleged that on July 3, 1948, plaintiffs and defendants entered into a written agreement whereby defendants agreed to sell and plaintiffs agreed to buy certain land located in Mendocino County on which was growing merchantable timber; that the contract provided the rights of plaintiffs as purchasers of the land would be subject to a timber sales contract, dated February 7, 1946, between defendants and S. C. Giles & Company, hereinafter referred to as Giles; that the contract between the parties hereto contained the further provision that defendants reserved the right to cut timber on the land for a period of six years following the execution of the agreement for the sum of $2.50 per thousand board feet; that thereafter plaintiffs paid the purchase price in full, and defendants delivered to them a grant deed; that by virtue of said deed plaintiffs are the owners of the land and the timber thereon, subject only to the right of Giles; that defendants have no right, title or interest in the same except the right to cut timber as previously alleged for the sum of $2.50 per thousand; that defendants cut 3,140,452 board feet, for which no payment was made; and that there is now owing to plaintiffs the sum of $7,851.12. The answer admitted the execution of the contract but denied that plaintiffs owned the land and timber subject only to the rights of Giles or that they had no right to cut timber except upon the payment of $2.50 per thousand.

The rights of the parties are predicated primarily upon the written document referred to in the pleadings. There is no dispute concerning the facts, all of which were stipulated to by respective counsel at the outset of the hearing. Such stipulations show additionally that the timber purchased by Giles had been paid for in full at the time of the execution of that contract; that Giles failed to cut 1,500,000 feet per year as specified in said contract; and that at the time defendants began cutting timber, more than five years had elapsed since the execution of their contract with Giles. Hence they had failed to comply with the terms of their contract.

At the conclusion of the trial the court found the allegations of plaintiffs' complaint were true and that the allegations of defendants' answer were untrue and gave judgment in favor of plaintiffs for the amount of the timber cut and removed by defendants.

It is defendants' contention that the timber cut by them was not timber contemplated under their contract with plaintiffs; that since Giles, under its contract with defendants, cut approximately 3,500,000 feet less than provided in their contract with the Thompsons, therefore the 3,000,000 feet cut and removed by defendants was timber which remained after Giles had abandoned its operation, and consequently did not come under the agreement between plaintiffs and defendants. Defendants further argue that since there was an absolute sale of the timber to Giles on February 7, 1946, title to such timber became severed from the land at that moment, and hence plaintiffs could acquire no rights therein by the deed from defendants in January of 1949. True that deed did transfer title to plaintiffs to all timber in excess of 7,500,000 feet, but as noted by the court in the case of Peterson v. Gibbs, 147 Cal. 1, 81 P. 121, which is cited and relied upon by both parties, ‘while there is much apparent conflict in the decisions as to the proper construction of a contract for the sale of standing trees to be removed, it is well settled that such a sale may be absolute, and the agreement to remove within a specified or resonable time merely a covenant, in which case the timber remains the property of the purchaser, although not removed within the specified time.’ 147 Cal. at page 6, 81 P. at page 123. The court therein further noted that the failure of the purchaser to seasonably remove timber does not of itself operate to forfeit his title thereto. Although the court therein does apparently imply that a failure to remove timber might work a forfeiture where the terms of the timber contract indicate less than an absolute conveyance, nevertheless in all cases it is essentially a question of the construction of the contract of sale.

Here the plaintiffs have clearly shown their title to the land subject only to the contract between Giles and the defendants, and since that contract contained no provision relative to any reversionary interest, nor did the court so find, Giles must be considered the owner of the 7,500,000 or balance thereof.

It necessarily follows that in the absence of any showing whatsoever by defendants that the timber cut by them was that to which Giles holds title, the judgment of the trial court must be affirmed.

The judgment is affirmed.

PEEK, Acting Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.