contracts that have been before the courts the purchaser has been given a specified time in which to cut and remove the timber; in other contracts, in which no time is specified, he is held to have a reasonable time in which to cut and remove. This annotation is concerned primarily with the rights of the parties upon the failure of the purchaser to cut and remove the timber within the time stated, or within a reasonable time where no time is stated in the contract. In order adequately to present the cases dealing with contracts specifying no time for removal, it has been deemed advisable to consider the question which precedes the one above outlined, viz., whether, when no time is specified for cutting and removal in a contract of sale of timber, or in a deed of the land reserving or excepting the timber, the purchaser or grantor, as the case may be, will be held obligated to remove it within a reasonable time, or whether he will be held to have a right to have the timber remain on the land in perpetuity. The rights as between the purchaser of the timber and a subsequent purchaser of land without exception. of timber, as illustrated by Christopher v. Curtis Attalla Lumber Co. (1912) 175 Ala. 484, 57 So. 837, are not considered herein. Nor is the right to partition before expiration of the time limited, or a reasonable time, -a question involved in Harrell v. Mason (1911) 170 Ala. 282, 54 So. 105, Ann. Cas. 1912D, 585,-considered. The rights upon a conveyance of mineral rights with the right to use timber have also been excluded. See Kennedy Stave & Cooperage Co. v. Sloss Sheffield Steel & I. Co. (1902) 137 Ala. 401, 34 So. 372, a case upon this point. And oral licenses, such as was involved in Putney v. Day (1833) 6 N. H. 430, 25 Am. Dec. 470, have been excluded. The validity of a reservation or exception of timber in a deed of the land is assumed in this discussion. For a reservation held invalid because made to others than the grantor, see Young's Petition (1877) 11 R. I. 636. II. Contracts specifying no time for removal. a. In general. The effect to be given a sale and conveyance of standing timber depends upon the intention of the parties. The owner may convey an estate in fee simple in the trees, or he may sell an estate determinable upon the failure to remove the trees within a time stated, or within a reasonable time, or he may give a mere license to cut timber for the period stated. Considerable conflict of opinion has developed in case of contracts of sale in which no time for removal is stated, as to whether an estate in fee simple is conveyed in the trees, or an estate determinable by failure to remove within a reasonable time. Primarily, this is a question of intention. Hicks v. Phillips (1912) 146 Ky. 305, 47 L.R.A. (N.S.) 878, 142 S. W. 394; Eastern Kentucky Mineral & Timber Co. v. Swann-Day Lumber Co. (1912) 148 Ky. 82, 46 L.R.A. (N.S.) 672, 146 S. W. 438. It is settled that a sale of timber may be made so as to pass to the purchaser a perpetual right to have the timber remain on the land, or a perpetual right to enter and remove it. Florida.-McNair & W. Land Co. v. Adams (1907) 54 Fla. 550, 45 So. 492; Cummer Co. v. Yager (1918) 75 Fla. 729, 79 So. 272. Georgia.-Baxter v. Mattox (1898) 106 Ga. 344, 32 S. E. 94; North Georgia Co. v. Bebee (1907) 128 Ga. 563, 57 S. E. 873. Iowa.-Baker v. Kenney (1910) 145 Iowa, 638, 139 Am. St. Rep. 456, 124 N. W. 901. Mississippi. Butterfield Lumber Co. v. Guy (1908) 92 Miss. 361, 15 L.R.A. (N.S.) 1123, 131 Am. St. Rep. 540, 46 So. 78; Forest Product & Mfg. Co. v. Buckley (1914) 107 Miss. 897, 66 So. 279. Montana.-R. M. Cobban Realty Co. v. Donlan (1915) 51 Mont. 58, 149 Pac. 484. Texas. Lodwick Lumber Co. v. Taylor (1906) 100 Tex. 270, 123 Am. St. Rep. 803, 98 S. W. 238; Houston Oil Co. v. Hamilton (1918) 109 Tex. 270, 206 S. W. 817, reversing (1913)Tex. Civ. App. -, 153 S. W. 1194. Virginia. - Johnson v. Powhatan Min. Co. (1920) 127 Va. 352, 103 S. E. 703. Such a right is not lost by failure to remove the timber within a reasonable time. Wilson Lumber Co. v. D. W. Alderman & Sons Co. (1908) 80 S. C. 106, 128 Am. St. Rep. 865, 61 S. E. 217; Chapman v. Dearman (1915) Tex. Civ. App., 181 S. W. 808, affirmed in (1921) Tex. 229 S. W. 1112. A purchaser of timber was held not to have forfeited his right to the same, where there was nothing in the agreement requiring him promptly to remove the timber, and his vendor had not demanded that he do so, in Davidson v. Moore (1896) 18 Ky. L. Rep. 563, 37 S. W. 260. It is stated in some cases that an agreement giving the purchaser a right to have the trees remain on the land in perpetuity is so unreasonable in its nature that no contract will be held to have this effect unless it is plainly manifest that such was the intention of the parties. McNair & W. Land Co. v. Adams (1907) 54 Fla. 550, 45 So. 492; Cummer Co. v. Yager (1918) 75 Fla. 729, 79 So. 272; McRae v. Stillwell (1900) 111 Ga. 65, 55 L.R.A. 513, 36 S. E. 604; Johnson v. Powhatan Min. Co. (1920) 127 Va. 352, 103 S. E. 703. A few cases disapprove of contracts for an indefinite time. A contract for the purchase and sale of timber, in which the purchaser was to have "the full term of five years within which to cut and remove the timber hereby conveyed, such term to commence from the time said party of the second part begins to manufacture said lumber into wood or lumber," was held void in Gay Mfg. Co. v. Hobbs (1901) 128 N. C. 46, 83 Am. St. Rep. 661, 38 S. E. 26. Referring to the provision. of the contract as to the time of commencement, the court said: "We think that that feature of the contract renders the whole void. The contract may be treated as a lease, or a term for years; for a lease can be made of the right to cut trees and dig b. Contracts construed as grants in When a sale of standing timber conveys a right to have it remain on the land in perpetuity, being, as above stated, a question of intention, it is difficult, if not impossible, to lay down any general test to determine the character of the grant or sale. In the following cases a grant in perpetuity was held to have been intended: A deed which conveys all "of the timber, wood, logs, and growing trees, suitable for saw-log purposes or being manufactured into lumber, now upon, or that may hereafter grow upon, all or any of the said lots of land," and also conveys to the grantee, his heirs, and assigns, the right and privilege, "now and at any and all times hereafter," to enter upon the land for the purpose of cutting such timber, is held in Baxter v. Mattox (1898) 106 Ga. 344, 32 S. E. 94, clearly to show an intention to convey a license in perpetuity to cut the timber, but it is added that, if under any peculiar circumstances the doctrine of reasonable time could be applied to the rights of the grantee under such a conveyance, there was nothing in the record in the case at bar to indicate that a reasonable time had expired. A perpetual right of entry to cut and remove trees was held to have been created in North Georgia Co. v. Bebee (1907) 128 Ga. 563, 57 S. E. 873, by a conveyance granting "unto the party of the second part, his heirs and assigns forever," the described trees, "together with the full and unreserved right of way over and through any and all the above-described lands, or any other lands that are now or may be hereafter owned or controlled by said party of the first part, for the manufacture or removal, at any time, of any and all timber of the party of the second part on said lands, also the right to cut and use at any time all timber necessary for the manufacture or removal of said timber," and containing a provision, also, for the payment of damage to growing crops or lands in the manufacture and removing of such timbers, and a general warranty to the parties of the second part, their heirs and assigns. The court in that case says, in reliance upon Baxter v. Mattox (Ga.) supra, that "where the owner of land grants the trees growing thereon to another and his heirs, with liberty to cut and carry them away at his pleasure forever, the grantee acquires an estate in fee in the trees with an interest in the soil sufficient for their growth, while the fee in the soil itself remains in the grantor." A conveyance reciting that the grantor had "bargained and sold and by these presents do grant and convey unto the said party of the second part, his executors, administrators, and assigns, all timber and growth of timber, . with privilege at all times to enter upon the above-described lands for the purpose of cutting and hauling timber therefrom, . . to have and to hold the same under the said party of the second part, his executors, administrators, and assigns forever," is a grant in perpetuity of the right to take timber. Baker v. Kenney (1910) 145 Iowa, 638, 139 Am. St. Rep. 456, 124 N. W. 901. The writing in question was headed "Bill of Sale," and a part of the description in the warranty was of "goods and chattels," and it was recorded in the chattel mortgage record. To these facts the court says no consideration need be given. In holding that the instrument conveyed a right in perpetuity, the court says: "The language of the instrument before us indicates that the parties contemplated the right on the part of defendant and his administrator or assigns, to take timber and growth of timber from the described land. There is not only a failure to fix a time limit, but the habendum clause expressly describes the right as one which is to exist forever. It is true in neither the granting clause nor the habendum are the heirs of the grantee mentioned, and at common law the grant would be construed to be for life only. But in this case 'the term "heirs" or other technical words of inheritance are not necessary to create and convey an estate in fee simple.' Code, § 2913. . . If a grantor, desiring to prepare an instrument which should convey to the grantee a fee-simple title to the incorporeal hereditament described in the instrument as the right to take timber and growth of timber from designated land, should attempt to frame a deed for that purpose, he could not, having regard to the laws of this state, do so in apter words than those used in the instrument before us, and we reach the conclusion that such was his purpose." In holding that a grant of timber conveyed an interest to the grantee which was not lost by failure to remove within a reasonable time, the court in Butterfield Lumber Co. v. Guy (1908) 92 Miss. 361, 15 L.R.A. (N.S.) 1123, 131 Am. St. Rep. 540, 46 So. 78, relies largely upon the fact that, according to the law of that state, a sale and conveyance of timber is a sale of an interest in realty. It is held that such conveyance vests an absolute title in the trees, independent of the land itself, and such title is not lost or forfeited by failure to remove within a reasonable time. The Butterfield Case was approved and followed in Forest Product & Mfg. Co. v. Buckley (1914) 107 Miss. 897, 66 So. 279, in case of a contract conveying and warranting to the purchaser all timber and timber-like trees being, growing, and standing upon the land, with the right to enter, cut, and remove the same "at pleasure." A grantee of land in whose deed timber has been excepted cannot claim title to the timber on the theory that it was to have been removed within a reasonable time, and has not been so removed. R. M. Cobban Realty Co. v. Donlan (1915) 51 Mont. 58, 149 Pac. 484. The deed involved in this case was in the ordinary form of a deed conveying real estate; it expressed a present consideration fully paid, its subject-matter was timber and growing trees, which were realty under the laws of the state, and it purported by appropriate language to convey this realty to the grantee, his heirs and assigns, forever. The conveyance in Lodwick Lumber Co. v. Taylor (1906) 100 Tex. 270, 123 Am. St. Rep. 803, 98 S. W. 238, after reciting a consideration, continued: "I have bargained, sold, and released, unto the Hope Lumber Company, heirs and assigns, forever, in fee simple, the following described tract or parcel of land, to wit: All the timber on and I do hereby bind myself, heirs, and legal representatives to warrant and forever defend, all and singular, the title to the above-mentioned premises unto the said Hope Lumber Company, heirs and assigns," etc. The court says: "The deed unmistakably expresses the intention to convey the timber as an interest in the land on which it stood, and to convey it in fee simple and forever. It is a wellsettled proposition that trees may be so conveyed or reserved in a deed as to leave in one person a title in fee in the soil generally, and in another a like title in the timber. Where this is the case there goes with the title to the timber the right to the use of the soil for its sustenance and of entry upon the land for its enjoyment. Consequently no such limitation as that the timber must be removed within a reasonable time can be imported by construction into such a grant or reservation. The very terms of the deed, when it says the title is conveyed in fee simple forever, answer any question that might otherwise arise as to the nature and duration of the right granted." This case followed in Jones v. Lodwick Lumber Co. (1907) Tex. Civ. App. S. W. 736, a case involving a similar contract. is 99 The deed involved in Chapman v. Dearman (1916) Tex. Civ. App. 181 S. W. 808, affirmed in (1921) Tex., 229 S. W. 1112, recited that in consideration of a stated sum the grantors have granted, sold, and conveyed unto the purchasers all the timber situated on certain described lands, and the grantors further authorize and empower the purchasers, their heirs, assigns, and legal representatives, to enter upon the land, cut and remove the timber. The habendum clause was, To have and to hold the above-described premises, together with all and singular the rights and appurtenances unto the said purchasers, "their heirs and assigns, forever." As may be seen, by comparison with some of the deeds involved in the Texas cases infra, this deed was very similar to some which were held to convey only a chattel interest, requiring the timber to be removed within a reasonable time. A conveyance by the owner of land to the purchaser of "the right of entering upon said land and removing said timber and trees from the same at the pleasure of said grantee, his heirs, personal representatives, and assigns to have and to hold the said granted property and privileges to the said G. H. Mooers, his heirs, personal representatives, and assigns forever," was interpreted in France v. Deep River Logging Co. (1914) 79 Wash. 336, 140 Pac. 361, Ann. Cas. 1916A, 238, to convey to the grantor a continuing, perpetual right, for all time, to enter upon the land and remove the timber. The deed involved in Houston Oil Co. v. Hamilton (1918) 109 Tex. 270, 206 S. W. 817, recited that in consideration of a stated sum the grantor bargained, sold, transferred, and delivered unto the grantee all the pine timber on the described tract of land, to have and to hold the timber, together with the right of way for the purpose of removing the timber, unto the said purchaser, "its successors and assigns, forever." The court says that this language admits of no other construction than as investing the purchaser with the right to have the described timber remain on the land until the purchaser or its assigns may elect to remove and appropriate the same. The language is, in substance, that the purchaser, "its successors and assigns, shall forever be entitled to have and to hold both the timber and the right of way to, upon, through, and across the land for the purpose of removing the timber, and the grantor binds himself, his heirs, executors, and administrators to forever warrant and defend unto the lumber company and its assigns the title to the timber and the license to enter at will on the land for the removal of the timber. As if to avoid any possibility of this habendum and warranty being so construed as to require a removal at any time other than at the free and unrestrained will of the purchaser, the clause is inserted that the grantee shall have 'all the time it demands in which to remove said timber off said lands.'" Compare with Brown v. Surry Lumber Co. (1912) 113 Va. 503, 75 S. E. 84, and Hawkins v. Goldsboro Lumber Co. (1905) 139 N. C. 160, 51 S. E. 852, infra, II. c, 2, as to a clause giving the purchaser all the time he desires. An absolute conveyance in fee simple, without conditions or limitations, of trees and timber suitable at the time for milling purposes, conveys an estate in the timber which is not lost by failure to remove it within a reasonable time. Wilson Lumber Co. v. D. W. Alderman & Sons Co. (1908) 80 S. C. 106, 128 Am. St. Rep. 865, 61 S. E. 217. The fact that the grantee has entered and cut part of the timber and then abandoned his operation, does not deprive him of the right to enter thereafter and cut other timber. The deed involved in this case not only granted the timber, but granted the right of ingress, egress, and regress for the purpose of "cutting and removing" the timber, and also the right to do any and all things whatsoever that may be necessary or convenient for "cutting and removing" the timber. The fact that has led some courts to hold that the timber must be removed within a reasonable time is that it appeared from the contract that a removal was intended. This argument was made to the court in R. M. Cobban Realty Co. v. Donlan (1915) 51 Mont. 58, 149 Pac. 484. In answer the court says: "This argument makes a grant of timber in perpetuity well-nigh impossible, since removal is contemplated at some time during the life of the timber in almost every case. It requires us to imply that, though given as a mere incident to the grant of the timber,-which grant, if language has any value, is in perpetuity, -the right of entry is limited in time, and, with that implication as to the incident, to condition a grant of the principal thing, otherwise unconditioned. A grant does not follow its incidents, but these follow, and, when expressed in general terms, take their character from the interest to which they are attached. . In its essentials, deed A [the deed |