
    MILLER & VIDOR LUMBER CO. v. KIRBY LUMBER CO. et al.
    (No. 373-3397.)
    
    (Commission of Appeals of Texas, Section A.
    Jan. 3, 1923.)
    I.Logs and logging <&wkey;3(IO)—Term merchantable in timber deed has reference to marketable timber at date of d'eed only.
    The term merchantable in timber deed has reference to such timber as was marketable at the date of the deed, and in the absence of provisions to the contrary, does not convey such as subsequently becomes merchantable by growth, or change in custom or marketability.
    2. Logs and logging <&wkey;3( 10)— Reservation of timber right for 18 years included timber subsequently becoming marketable by growth.
    A timber deed reading, “said company reserves unto itseflf, its successors and assigns, all' merchantable pine timber for a period of 18 years from date hereof,” construed and held to include within the reservation the timber subsequently becoming marketable by growth, the merchantability to be determined by the standard of merchantability in use at the date of the deed. 1
    3. Logs and logging &wkey;»3(IO)—Timber deed with privilege to cut merchantable timber for 20 years, construed and held to include timber becoming merchantable by growth subsequent to date of deed.
    
    A timber "deed reading “save and except all the merchantable timber standing or growing or to be standing or growing upon the above described * * * parcels, of land *■ * * for period of 20 years” construed and held that the language is sufficiently comprehensive to include timber becoming merchantable by growth subsequent to the date of the deed, the merchantability to be tested by the standard of merchantability in use at the date of the deed.
    4. Logs and logging <&wkey;3(IO)—Merchantability of timber is determined by standard in use at time deed is executed, in absence of express or implied provision in deed to contrary.
    ■ Where there is nothing in a timber deed that expressly or impliedly indicates that it was the intention to reserve timber that might subsequently become merchantable by reason of change in- market' conditions, the merchantability is to be determined by the standard in use at the time the deed was executed, and not the standard that may have coime into use at a subsequent time within the period during which timber was reserved.
    Certified Questions froip Court of Civil Appeals of Ninth Supreme Judicial District.
    Action by the Miller & Vidor Dumber Company against the Kirby Dumber Company and others. From a judgment for plaintiff in part only, it appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    E. E. Townes and H. H. Baker, both of Houston, and T. D. Foster and Foster & Hardwicke, all of Beaumont, for appellant.
    Holland & Holland, of Orange, and Andrews, Streetman, Burns & Dogue, and Ken-nerly, Williams, Dee & Hill, all of Houston, for appellees..
    
      
      Rehearing denied February 7, 1923.
    
   SPENCER, P. J.

The honorable Court of Civil Appeals for the Ninth judicial district certified to the Supreme Court the following facts found and questions stated:

“Appellant sued appellees in the district court of Orange county for the recovery of title and possession of two tracts of land situated in Jasper county, and for damages for the value of timber removed from said land. Judgment in the trial court was rendered in favor of appellant for the land, and against the appellant on its claim for damages.
“Appellees admit the appellant’s ownership of the land, and the only controversies hinge upon the effect to be given to timber reservations in deeds under which appellant holds title. Those deeds are in the ordinary forim of conveyances of title, with habendum and warranty clauses in the usual form, and they undoubtedly pass all the realty except what is reserved in clauses relating to- -timber and a clause in one deed relating to oil and mineral rights. The oil and mineral right is not in question on this appeal.
“The deeds under construction are: (1) A deed of date May 24, 1901, from Beaumont Lumber Company to J. W. Sanders, conveying many tracts of land, including one of the tracts involved in this suit. (2) A deed of date July 14, 1S99, also from Beaumont Lumber Company to J. W. Sanders, conveying many tracts of land, including the other one of the two tracts involved in this suit.
“It was agreed upon the trial that appellant, Miller & Vidor Lumber Company, owned such title and rights as were acquired by the said J. W. Sanders by virtue of said deeds, and that the appellee Houston Oil Company of Texas acquired such title and rights as were reserved to the Beaumont Lumber Company in said deeds. The timber reservation in the first named deed, from Beaumont Lumber Company to J. W. Sanders, of date in 1901, was in the following language:
“ ‘The above and foregoing conveyance of said tracts and parcels of land is made, however, subject to the following conditions: Said company reserves unto itself, its successors and assigns, all merchantable pine timber upon said lands for a period of eighteen years from date hereof, and said J. W. Sanders accepts this conveyance subject to said exception, and with the express understanding that said company shall have the right to remove said timber from time to time, and at any time during said period of eighteen years, and that said company reserves the right of ingress and egress upon any part of said land for the purposes of removing timber, either by team, tramways, roadways or by any means whatsoever.’
“The merchantable pine timber was reserved in the second named deed from the Beaumont Lumber Company to J. W. Sanders by the following clause:
“ ‘Save and except all the merchantable- pine timber standing or growing, or to be standing or growing upon the above-described several tracts, lots and parcels of land, the title oi which said Beaumont Lumber Company hereby expressly retains in itself, together with right of free ingress and egress to, for itself, its successors and assigns, and its or their employes and tenants, with tram railroads, engines, cars, machinery, carts, wagons, or other vehicles, horses, mules or cattle, as by it, him, or them shall be deemed necessary, convenient or desired at any and all times in and upon the said lands, and to cut and remove the said merchantable pme timber therefrom, for and during the full space of twenty years from the 14th day of July, 189-9, and expiring on the 14th day of July, 1919, at and from said latter date this deed is to become absolute, and not until then, together with all and singular the rights, members, hereditaments and appurtenances to the same belonging or in anywise incident or appertaining.’
“It was agreed, also, that the defendant Kirby Lumber Company cut and removed the pine timber from said two tracts of land, under agreement with the Houston Oil Company of Texas, purporting to give it the sole right to cut timber from the holdings of the oil company, and that the Kirby Lumber Company cut and appropriated the timber from said tracts.
“The trial court held that all of the timber that was cut and removed by the appellees was merchantable, at the time it was cut, and declined to find from the evidence the standard of merchantable quality for pine timber at the .dates when said deeds were made, and what portion was not merchantable according to such standard when removed.
“The evidence is conflicting and would authorize a finding that much valuable timber had been taken from the tract of land covered by the deed of 1901 which was not large enough to be considered marketable timber at the date of the deed, and that a substantial part of it was not large enough even when cut to be considered marketable timber according to the standards of merchantable quality existing at the date of the deed; and that from the land covered by the deed of 1899 there was taken by appellees much timber which was not merchantable when it was -taken according to the standard of merchantable quality existing at the time when the deed was executed.
“The questions, therefore, result from growth in size of the timber during the period covered by the contract and from probable changes in the standard of merchantable quality in use at different times.
“It is apparent from the agreements in the record that the same questions arise in other litigation between the same parties involving large tracts of timber held under the same deeds and others similar to them, and'it is also clear that a final decision of these questions is of great and pressing importance to the public. We, therefore, and in view of the dissenting opinion, request the Supreme Court to answer tne following questions:
“(1) As of what time should the test be applied to the timber to determine what trees had grown.large enough to be merchantable? Did the deed of date 1901 reserve only what was at that time ‘merchantable pine timber’; or did such reservation include all timber which, should, during the period of eighteen years from its date, become ‘merchantable pine timber’?
“(2) The same question as above is propounded as to the deed of 1899.
“(3) 'What test of merchantable quality should be applied under these deeds, and each of them, if there be any difference in that respect? In other words, should the question of right to take timber of a given state of development or given dimensions be tested by the standard of merchantable quality in use at time the particular deed in question was executed or the standard ih use at the time the timber was cut?”

In view of the language employed in the deed of 1901, it cannot be doubted that the grantor intended to reserve to itself, its successors, and assigns, the timber rights of the land conveyed for a period of eighteen years. The timber reservation was not, however, full and complete, but restricted to merchantable timber.

According to the great weight of authority, 'the term merchantable in timber deeds has reference to such timber as was marketable at the date of the deed, and, in the absence of provisions to the contrary, does not convey such as subsequently becomes merchantable by growth, or change in custom or marketability. Polley v. Ford, 190 Ky. 579, 227 S. W. 1007; Roberts v. Gress, 134 Ga. 271, 67 S. E. 802; Whitfield v. Rowland Lbr. Co., 152 N. C. 211, 67 S. E. 512; Robertson v. H. Western Lumber Co., 124 Miss. 606, 87 South. 120, and authorities there cited.

Had the parties to the deed in the present case intended to confine the reservation to timber merchantable at the date of the deed they would not have added the words ‘‘for a period of 18 years from the date hereof.” The reservation of all merchantable timber at the date of the deed would have been accomplished by the omission of these words. Their use cannot, therefore,, be ignpred, but must be given effect in. construing the contract. Their use could serve but one purpose; that is, to include within the reservation of marketable timber, the timber subsequently becoming marketable by growth. This is the evident meaning of the language used.

There is nothing in the deed, however, that expressly or impliedly indicates that it was the intention to reserve timber that might subsequently become merchantable by reason of change in market conditions and in the absence of any such provision the merchantability is to be determined by the standard in use at the time the deed' was executed, and not the standard that may have come into use at a subsequent time within the 18-year period. Authorities supra.

The reservation in the deed of 1899 'presents no serious difficulty. In it there is reserved to the grantor all merchantable timber standing or growing, or to be standing or growing upon the land for the period stated. This language is sufficiently comprehensive to include and does include timber subsequently becoming merchantable by growth.

The test of merchantability in this instance is, of course, the same as in the case of the conveyance of 1901, and what has been said with, reference thereto In construing that instrument, is applicable in construing the present one. In this case, as in that, there is no expressed or implied provision reserving timber that subsequently ¡becomes marketable on account of changed market conditions, and in the abbence of such a provision the standard of merchantability is to be tested by the standard in use at the date of the execution of the deed. To hold otherwise would be to import into the contract a provision not found therein.

In answering the certified questions, we hold: (1) That the test of merchantability in use at the date of the execution of the deed is the test to be applied to determine what trees had grown merchantable and not the standard in use at the time of the cutting of the timber. The deed of 1901 reserved all timber merchantable at the date of the execution of the^ deed, and all that subsequently became merchantable by growth during the stated period, tested by the standard of merchantability in use at the date of the deed. (2) The same answer apxslies as to the construction to be given in the deed of 1899. (3) The answers to'questions 1 and 2 render unnecessary an answer to question No. 3.

CURETON, G. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. 
      <g=a>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     