Supreme Court of Canada
Beatty v. Mathewson, (1908) 40 S.C.R. 557
Date: 1908-10-06
Isabella Eliza Beatty, John D. Beatty and The William Beatty Estate (Defendants) Appellants;
and
William Mathewson (Plaintiff) Respondent.
1908: June 4; 1908: October 6.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Contract—Construction—Sale of timber—Fee simple—Right of removal—Reasonable time.
In 1872 M., owner of timber land, sold to B. the pine timber thereon with the right to remove it within ten years. In 1881 another agreement replaced this and conveyed all the timber standing, growing or being on the land to have and to hold the same unto the said party of the second part, his heirs and assigns “forever” with a right at all reasonable times during years to enter and cut and remove the same. B. exercised his rights over the timber at times up to his death in 1893 and his executors did so after his death, M. not objecting. In 1903 persons authorized by said executors entered and cut timber and continued until 1905. The following year B. brought an action for an injunction against further cutting, a declaration that the right to take the timber had lapsed and for damages.
Held, affirming the judgment of the Court of Appeal (15 Ont. L.R. 557), Davies and Duff JJ. dissenting, that the instrument executed in 1881 did not convey to B. the fee simple in the standing timber but only gave him the right to cut and remove it within a reasonable time and that such time had elapsed before the entry to cut in 1903 and M. was entitled to damages.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment at the trial in favour of the plaintiff.
[Page 558]
Under the agreement mentioned in the above head-note the executors of William Beatty, the grantee therein, authorized certain persons who were defendants in the action but not parties to this appeal, to enter on plaintiff’s land in 1903, 1904 and 1905, and cut timber. Plaintiff did not protest against this until 1905, and brought his action in March, 1906, by which he claimed damages for trespass during the previous three years. At the trial he recovered damages, a declaration that the rights of defendants had lapsed before the trespasses complained of in 1903, and an injunction. This judgment was affirmed by the Court of Appeal and the defendants then appealed to the Supreme Court of Canada.
Hodgins K.C. and H.E. Stone for the appellants. The agreement is clear and unambiguous and the sense in which its provisions were intended by the parties cannot affect its construction. North Eastern Railway Co. v. Hastings.
The grant of the right to enter and cut is a grant of a license for profit to be exercised according to commercial requirements. See Wickham v. Hawker.
The words “during the term of * * years” can be struck out of the document. See Inglis v. Buttery.
If the appellants were bound to exercise their rights within a reasonable time such time must be fixed by the commercial necessities of the transaction and the evidence shews that the timber could not have been profitably cut before the years 1903-1905. See Carvill v. Schofield.
[Page 559]
F.R. Powell K.C. for the respondent. As the agreement only conveyed the timber standing at the time it was made and not the future growth it necessarily meant that it should be removed within a reasonable time. Challis on Real Property p. 224.
As to what is a reasonable time see Dolan v. Baker; McRae v. Stillwell, Millen & Co.; Am. & Eng. Ency. of Law, 2 ed., vol. 28, p. 542.
Hodgins K.C in reply referred to Hick v. Raymond & Reid; Dahl v. Nelson, Donkin & Others; Patterson v. Graham.
GIROUARD J. agreed in the opinion stated by Idington J.
DAVIES J. (dissenting).—The dispute in this case arises out of the proper construction of the deed under which the appellant Beatty claimed and exercised the right of cutting the trees on respondent Mathewson’s land. It is not the case of a mere right to cut trees being given but one where a grant of the trees themselves is given. Where a right to cut merely is given I can well understand either the document itself containing a clause restrictive as to the time within which the cutting was to take place or in its absence the necessity arising for a judicial determination of a reasonable time within which the right was intended under all the circumstances to be exercised.
[Page 560]
Authorities were cited at the argument in support of this latter position with which I do not propose to quarrel. I cannot however accept these authorities as applicable to a case where a grant of the trees themselves is made in or over a parcel of land.
In such case where apt words are used an estate of inheritance in the trees is vested in the grantee together with the necessary incidents of such an estate.
That is the case in the deed before us and which we are called upon to construe. It grants and conveys to Beatty all the pine, oak, birch, hemlock and other timber at the time of the execution growing or being in or upon the land described to hold to the grantee his heirs and assigns forever.
Under English law as laid down in authorities which I do not think we have the right to disregard this language vested in Beatty an estate of inheritance in the timber described and as a necessary incident the right to enter upon the land at all reasonable times for the purpose of cutting and removing the timber.
The subsequent clause now in dispute professing to confer this incidental right upon the grantee was in my view necessary. No negative words were introduced into the clause prohibiting the cutting of the trees after a specified time but the clause which was in a printed form professed to confer such a limited right. In the case before us the blank left for stating the limited time, months or years, was not filled up, and so the clause merely professed to confer this right for blank years. The court below assume under these circumstances the right to insert in this blank what they hold must have been intended under the circumstances, namely, a reasonable time from the date of the deed.
[Page 561]
I do not think if I am right in my construction of the clause that we have any right to read such a limitation into the deed. It certainly would be inconsistent with the estate granted and might well be held bad for that reason even if it had been inserted by the parties themselves.
For these reasons I am of opinion that the appeal should be allowed and the action of the plaintiff dismissed.
IDINGTON J.—This appeal depends upon the interpretation to be given to a deed drawn by the party under whom appellant claims title, and like most ill-drawn documents, as it is, gives rise to some puzzling questions.
Inasmuch as it relates to what has been held to be an interest in land the difficulty arises of reaching a conclusion that will not infringe on the one hand on well-known rules of interpretation applicable to deeds of conveyance of real estate, or on the other hand, frustrate the intentions of the parties to it, or defeat the reasonable expectations of either of the parties who may have misconceived the rigid rules applicable to the conveyance of real estate.
The document is ambiguous. The surrounding facts and circumstances may therefore be looked at and borne in mind in the task of interpreting it.
One very essential thing in this regard is that the vendee had previously bought the pine timber on this same land with a right to take it in ten years from the purchase, and as that happened not to have been practicable, he desired the time extended. In coming to an agreement for such extension of time, the vendee desired to extend the subject matter of it so
[Page 562]
as to include timber of other kinds named, in addition to the pine, and that part of the price originally agreed on for the pine alone should form and be part of the aggregate price, to be made up of such part of the original consideration and a further small sum named.
The transactions are so intimately connected, that this one now in question may be well said to form but a continuation of the prior one with some modifications in same.
Let us consider the scope of the entire document. Let us observe also that there is a blank in which evidently it had been intended something should be agreed on and inserted specifying the number of years the vendee should have to remove the timber.
Must we, under such conditions, say as we are asked by the appellants to say, that an unconditional estate in fee simple has been granted?
This would so clearly defeat the obvious intentions of the parties to be inferred from the external circumstance as well as that within the document itself when considered as a whole, and lead to such unjust results, that I pause to see if we are driven to adopt such contention.
In the first place I do not admit that the terms of the premises and habendum necessarily imply an estate in fee simple. To begin with, it is not of the timber for all time grown upon the lot that a sale is made, but of that “now standing growing or being in or upon” the land described. We know that timber such as named does not live and remain obtainable for any useful purpose for such length of time as an estate in fee simple primâ facie implies, or as the expression “forever” used in this habendum implies,
[Page 563]
apart altogether from what the words immediately preceding the word “forever” imply.
This is not the case of any conditional fee dependent on the life of man or tree or other thing.
The premises and habendum are indeed inconsistent and insensible when we consider the life of the tree, that lives longest of those sold, as the utmost term that by any possibility can have been intended.
We cannot, as might happen in a differently drawn instrument dealing with such a subject matter, reject that following the habendum which had so clearly granted an estate such as would render it imperative to reject what followed the habendum as inconsistent with or repugnant to it.
The case of a grant of a fee conditioned on the life of the longest lived of the trees in question would not need the provision for the right of entry to make roads to take the timber.
That being expressly provided for implies also that such a conditional fee was not intended.
The case of Re Hammersly, presents a document not unlike this one. The court rejected the word “heirs” as inconsistent with what the parties were contracting for.
In this case there is evidently an imperfect document. Its condition in that respect must also be borne in mind.
In the case of a limitation to “A” and his heirs for a term of years, it is said only a chattel interest is conferred, and it passes to the executor on death of “A”. See Elphinstone, Blackstone edition, p. 245, and the authorities cited there, and the recent Norton edition, at p. 299 and the authorities cited therein.
[Page 564]
I think, for these reasons and those set forth above, that this curiosity of an inapt use of words cannot be held to be a grant of any such estate in the land as would make it imperative to reject the later part of the document, and that it is to be taken as of a kind that we can, as was done in the Hammersly Case, reject the word “heirs” entirely, or hold that it is impossible to give a greater effect to it than the later expressions imply should be given it.
It thus comes, I think, to what was a reasonable term of years, as implied in the document as it stands, and giving effect to its entire scope for removal of the timber in question. I agree with the learned trial judge that that limit of time had been so far passed before the acts complained of, that the rights the vendee once had under the agreement in question had then expired.
I, think though Dolan v. Baker may not be binding on us, the reasonable time adopted there was the proper measure and could well be followed here.
I may observe that. I have not overlooked the fact that the instrument purports to be made in pursuance of “the Act respecting short forms of conveyances,” and was made after the “Act respecting the transfer of real property” as it stood in R.S.O. of 1877, ch. 98, and before the later Acts on the same subject in 49 Vict. and 50 Vict.
The argument put forward by the appellants’ counsel that the commercial conditions of the case are to be considered, and that a time when it would be profitable to remove the timber ought to govern, is unsound.
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Such a thing clearly was not within the contemplation of the parties.
The judgment ought, I think, to stand and the appeal be dismissed with costs.
MACLENNAN J.—I would dismiss for the reasons given in the Court of Appeal.
DUFF J. (dissenting).—The action out of which this appeal arises was brought by the respondents to recover damages from the appellants for alleged trespasses consisting of the cutting and removal of timber from the respondents’ land.
The appellants, who are trustees under the will of one William Beatty, justify under a deed of conveyance dated 15th September, 1881, made between the respondents and Beatty.
The question to be determined turns wholly upon the true construction of this deed. It was not argued on behalf of the respondents that upon the evidence there is any sufficient ground for holding that the instrument was not executed by the parties with the intention of thereby recording the transaction between them, or that it is not binding on the parties as failing to record that transaction truly; and no such point appears to have been taken in the courts below or finds a place in the pleadings. We have consequently to ascertain the rights of the parties from the language of the instrument with such assistance as may be obtained from the relevant circumstances under the rules of law governing the interpretation of written instruments.
By the deed in question the respondent, who was the owner of lots 115 “A” and 116 “B” in the Township of Foley, Parry Sound, professed to
[Page 566]
grant, bargain, sell and assign unto (Beatty) his heirs and assigns, all the pine, oak, birch, hemlock and other timber now standing, growing or being in or upon all and singular that certain parcel or tract of land and premises situate lying and being (describing them). To have and to hold the same unto the said party of the second part his heirs and assigns forever, together with full power, liberty, right and authority for the said party of the second part, his servants, workmen and agents from time to time and at all reasonable times hereafter during the term of years to fell, cut down, grub up, saw, dress, hew and work up the said timber, and together with full and free ingress, egress and regress, for the said party of the second part his servants, workmen and agents with or without horses, oxen, waggons, carts, sleighs, trucks and teams to enter into and upon and over the said lands and premises for the purposes aforesaid, and also for the purpose of taking and carrying away the said timber with liberty also to make all such roads as may from time to time be necessary for getting out and removing the said timber, and for that purpose to cut, fell, hew and remove such trees, logs and brush as may be deemed necessary.
Further the grantors entered into covenants—in the form prescribed by the schedule of the Ontario “Act respecting short forms of conveyances,” save that in the deed the word “timber” is substituted for the word “land” appearing in the form—for quiet possession; for further assurances; and that the grantors have done no act to encumber the subject of the grant. Finally the grantors profess to release to the grantee “all their claims upon the said lands in so far as the same may affect the said timber.”
The respondents put their case thus:—They say the deed in its true construction is to be read as an agreement for the sale of standing timber to be cut and removed by the vendee; and inasmuch as the instrument itself fixes no time within which the work of removing it is to be completed the law implies an agreement between the parties that it shall be removed within a reasonable time; and that after the expiry of a period which in fact is in the circum-
[Page 567]
stances reasonable for that purpose, the appellants’ rights under the agreement must be held to have lapsed. In a word the instrument provides, according to the respondents, for a sale of timber conditional upon the cutting and removal of it by the vendee within a reasonable time.
The courts below have held in substance that this is the true construction of the document; and further that the appellants’ rights had lapsed at the time the acts were done in respect of which the action was brought and consequently that the respondent cannot justify under the deed. With great respect I have come to the conclusion that another construction must be given to the instrument; and in my view of its legal effect the last mentioned point—whether a reasonable period for cutting and removing the timber has or has not elapsed—which the courts below have decided in favour of the respondent, is a point which it will not be necessary to consider.
It will be noticed that the instrument at the outset professes to grant to the grantee his heirs and assigns all the timber “standing, growing or being” upon the lands referred to. I think it is quite important to determine the legal effect of this part of the instrument; that is to say, to ascertain what the words in themselves mean, and what their legal effect would be, if they stood by themselves in a deed without any other provision. I think it is very clear that such words in such a document would have the effect of vesting in the grantee an estate in fee simple in the growing timber described. I do not know that anybody disputes that the owner of an estate of fee simple in land on which trees are growing may by an appropriate assurance vest in another an estate of
[Page 568]
inheritance in one or more of the trees. My own view is clear, and it may be, I think, of some importance to emphasize it. The law touching the point is I think correctly stated by two modern text writers, and I quote the passages. The first, from Mr. Leake’s Uses and Profits of Land at page 30:
A grant or an exception from a grant, of the trees growing in certain land, creates a property in the trees, separate from the property in the soil; but with the right of having them grow and subsist upon it. (b) An estate of inheritance in a tree may thus be created.
The second, from Washburn on Real Property at page 16:
But if 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.
The views of these writers seem to be fully supported by authority. Those cited by Mr. Challis at p. 229 of his book on the Law of Real Property establish beyond question that a determinable fee may be validly limited to a man and his heirs “as long as such a tree shall grow” or “as long as such a tree stands”; and the reason why such limitations are good is given in Liford’s Case, and is there said to be “because a man may have an inheritance in the tree itself.” In the same case at page 49b there occurs this passage:
If I by deed grant all my trees within my manor of G. to one and his heirs the grantee shall have an inheritance in them,
although it is quite clear from Liford’s Case14, as well as from other authorities; Ive’s Case; Whilster v. Paslow; that by a grant of trees simpliciter
[Page 569]
no soil passes but “sufficient nutriment to sustain the vegetative life of the trees” only.
It seems nevertheless to be indisputable that growing timber may be so granted as to vest it in sitû in the grantee as a chattel; Stukeley v. Butler; Herlakenden’s Case; Anon; Shepherd’s Touchstone, 471; Williams, Executors, 543; notwithstanding the vigorous criticism by Chitty J. in Lavery v. Pursell, at pp. 515-517, I think it is too late to dispute that doctrine. I have however been unable to find any shred of authority or any suggestion of a good reason for doubting the proposition stated by Mr. Leake and Prof. Washburn—in the passages I have quoted—that growing timber in sitû may as such by apt words be vested in a grantee for an estate of inheritance apart from the property in the soil.
It follows from this that the words last quoted from the instrument in question would if they stood alone unquestionably have the effect of vesting in the grantee an estate in fee simple in the timber described. I think moreover that when you have a grant of timber in sitû in fee simple the law confers as one of the legal incidents of the grant the right to go upon the land to enjoy the timber, including of course the right of cutting and removing it. In Liford’s Case it was resolved (52a):
When the lessor excepted the trees, and afterwards had an intention to sell them, the law gave him, and them who would buy, power, as incident to the exception, to enter and shew the trees to those who would have them; for without sight none would buy, and without entry they could not see them.
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and it is further said:
If I grant you my trees in my wood, you may come with carts over my land to carry the wood, temp. Ed. 1, Grants 41. Lex est cuicunque aliquis quid concedit, concedere videtur, et id sine quo res ipsa esse non potuit.
In Stukeley v. Butler, Hobart C.J. gives many examples of the application of this principle, and it was there held that even when the timber is sold as a chattel such a right is vested in the grantee of standing timber as incident to the grant.
The majority of the court below have held that this principle is not applicable here, and this view appears to be based upon two distinct grounds; first, that the principle itself, stated broadly as I have stated it, is no longer law, but that, when from the facts of the case it can be gathered that the removal of the timber was contemplated by the parties, then, in the absence of a specific stipulation to the contrary, the law places a restriction upon the implied right of entry requiring it to be exercised within a reasonable time; and secondly, that assuming the rule to be still applicable to cases where there is no express right of entry given by the instrument of grant, it has no application in cases where, by the instrument of grant itself the parties expressly stipulate—as it is said they have in the instrument in question here stipulated—for a right of entry; in which case it is said the grantee’s right in that regard must be ascertained from the terms of the instrument.
It will be convenient to consider these two grounds in the order I have stated them.
The question raised by the first is whether, given a grant of standing timber in fee, the fact that the
[Page 571]
parties have contemplated the removal of the timber is in itself sufficient to limit the right of entry in the manner stated.
Stukeley v. Butler, at page 173, is an authority directly in point; and the question stated cannot be answered in the affirmative without repudiating the authority of Stukeley v. Butler23. For whatever may be said of that case as an authority on other points its ratio obviously involves this; that a grant of the absolute property in standing timber in sitû without more confers by implication a right of entry for the purpose of cutting and removing it so long as the grantee’s interest lasts.
Now Stukeley v. Butler23 has stood for some hundreds of years; and the principle upon which it proceeds must have been acted upon in thousands of transactions. These circumstances together afford very powerful reasons against refusing at this date to follow it; and in my opinion they are conclusive reasons unless it can be shewn that by some competent authority the law has been declared in a different sense.
The court below adopted the decision of the Divisional Court in Dolan v. Baker. In that case the Divisional Court proceeded in part upon the principle of a long series of decisions in the state courts of the United States and in part upon the authority of a series of decisions in the courts of Ontario. These last mentioned decisions, however, (which are collected in the judgment of Magee J. at p. 271), appear to rest in every case upon the view that on the true construction of the transaction under consideration the vendee had acquired only a right to take away such of the
[Page 572]
timber as he should remove within a limited time. Such decisions plainly have no bearing upon the question I am now considering. On the other hand some of the American decisions relied upon in Dolan v. Baker do unquestionably proceed upon the principle that a grant of standing timber apart from the soil is in the absence of express stipulation to the contrary subject to a condition that it is to be removed within a reasonable time; but the American decisions are by no means in harmony; and I can find in them no satisfactory grounds for impugning the authority of Stukeley v. Butler. Neither does the actual decision in Dolan v. Baker25 itself seem to touch very closely the point now under consideration. The instrument there dealt with did not profess to grant a present interest in the timber which was the subject of the sale; it provided for selection by the vendee and vested in the grantee the property in so much of any of the timber referred to “as he should see fit to remove.” (See Boyd C. at p. 265.) Until selection and removal, I gather from the report, the property was not to pass. The ratio of the decision is stated by Magee J. at pp. 270 and 271 in these words:
There was here an implied condition that the timber should be selected and removed within a reasonable time. It would be intolerable that the vendee should be left for an unreasonable time without the use either of his land or his money and in ignorance even of what trees the purchaser might select and so unable to sell or clear off any.
Such reasoning, appropriate and cogent as applied to the facts of that case, seems to have little bearing upon the questions raised by the instrument now before us.
[Page 573]
There are however in the judgment of Boyd C. in Dolan v. Baker25 observations which lend support to the view that as a general rule in grants of growing timber the stipulation suggested is implied by law. Boyd C. indeed accepts “as a reasonable doctrine” the doctrine laid down in some comparatively recent decisions in Georgia—that it is “incumbent upon the grantees to cut and remove such timber within a reasonable time from the sale and that on failure to do so their interest ceases”; and that the question of reasonable time is a question of fact in the circumstances. No English authority is referred to in support of this position except a dictum of Parke B. in Hewitt v. Isham, cited from the report of that case at page 79 to this effect:
Wherever trees are excepted from a demise, there is, by implication, a right in the landlord to enter the land, and cut the trees at all reasonable times. If, indeed, he leaves them on the land for an unreasonable time, he does more than the law authorizes him to do.
This, the learned chancellor suggests, contains the germ of the doctrine he adopts from the American cases.
A reference however to the report of that case in the Law Journal shews that Parke B. was speaking only of the duty of the grantee of the timber to remove it within a reasonable time after it is felled. In that report the passage appears thus:
If the trees were excepted out of the lease, the lessor had a right to go upon the land and enjoy the trees and cut them down. If indeed he saws them upon the land and leaves them an unreasonable time, he does more than he is justified in doing, and is liable to an action.
[Page 574]
With unaffected great respect for the opinion of the learned Chancellor of Ontario, I am compelled to come to the conclusion that the principle I have stated (for which Liford’s Case and Stukeley v. Butler have for so long stood as authorities unquestioned in England), still stands, and ought to be applied in jurisdictions where the law of England prevails.
In considering the second ground referred to, the first question which naturally arises is, whether or not, assuming the blank in the clause relating to the right of entry to be filled in and the exercise of that right, so conferred, expressly limited to a specified term of years, such a clause could have any legal effect in derogation of the rights vested in the grantee under the grant expressed in the earlier part of the instrument. If I am right in my view that the right of entry incident to the grant is a right which the law annexes to the interest passing under the grant then it would seem to follow that any attempt in one and the same conveyance to grant the interest and to withhold the incidental right is an attempt which the law will not permit to succeed. The condition or stipulation professing to effect the deprivation of the right is in the language of the law void, as repugnant to the grant.
I do not, however, think the appellants depend for their success in this appeal upon this rule of law. Treating the question as a matter of interpretation simply, and assuming that a clause giving a right of entry for a specified period could be held to displace the right of entry incident to the grant itself, still I can find nothing in the clause before us to justify the conclusion that the grantee’s right of entry is
[Page 575]
more limited than it would be if that clause were not found in the deed. What in view of all the facts is the fair inference from the omission of the parties to specify the term of years? The learned trial judge says:
This land, it appears, is poor farming land. Far the greater part of it is rocky and unfit for farming. During the thirty-five years of Mr. Mathewson’s ownership there has only been some thirty-five or thirty-seven acres cleared. The rest of it is unfenced, and has only been used by him for pasturing cattle with occasional taking of timber.
At the date of the execution of the deed there was admittedly no market for a good deal of the timber; for over twenty years after that date the parties acted upon the view that the deed imposed no limit of time in respect of the grantee’s right of entry. These circumstances seem to me to point to the conclusion that the blank was not filled in because the parties never touched the point in their transaction, and never thought of it. If then one discard the blank from consideration and treat the clause as one conferring a right of entry without specific limitation, I do not understand on what principle it can be held that, so read, it displaces the implication arising from the grant. The right of entry is given as accessory to the grant, which is a grant of an interest in perpetuity; on what ground is it to be held to limit or condition that interest? Are we first to imply a condition that the exercise of the right of entry is to be limited in time; and then with that implication deprive the grantee of a right which otherwise would pass to him as a legal consequence of the grant? To me the weight of argument lies in the suggestion that such right of entry conferred in general or equivocal terms takes its character from the interest to which
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it is accessory. I think that in such a case the rule which implies a stipulation that things agreed to be done inter partes shall be done within a reasonable time has no application. That rule must always yield where the terms of the instrument are on their true construction sufficient to manifest a contrary intention; and in this case such contrary intention would seem to be sufficiently manifested by the terms of the grant itself.
The appeal should be allowed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Pirie & Stone.
Solicitor for the respondent: F.R. Powell.
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