Public-domain · open source
OpenJurist

148 Ky. 670

Hicks v. Phillips

Court of Appeals of Kentucky

Decided May 31, 1912

Court of Appeals of Kentucky · decided 1912-05-31

<p>Deeds — Reservations and Exceptions — Construction.—Timber on a specified part of land does not include saplings or undergrowth, but sucb trees as were, at tbe time of conveyance, of a size suitable for lumber. Tbe right to remove timber so reserved, is not personal to tbe grantor, and may be transferred as any other property.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1912-05-31

How this case has been cited

Cited by 8 later decisions — most recently January 1944

2 federal appellate · 6 state decisions

401912192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Response to Petition eor Rerearing by

Judge Passing —

¶2Overruling.

¶3For original opinion in this case see 146 Ky., 305.

¶4It is most earnestly urged that the court is in error in holding that a vendor has more than a reasonable time, within which to cut and remove from the soil the timber which he has reserved. Upon consideration, we adhere to the rulings expressed in the opinion.

¶5It is also suggsted that the rights of the parties, under the opinion, are not clearly defined, and much room is left for contention in determining what timber may be taken from the land by the representatives of Phillips, the original grantor. Webster defines “Timber” to be: Lumber used in building, carpentry, etc. It is immaterial whether the timber is cut and seasoned, or in the tree. This is the meaning usually given the term, in its commonly accepted use. It is so understood by lumbermen and timbermen. Saplings and undergrowth are not covered by the term “timber.” Hence, the vendor, in reserving to himself the timber growing upon certain lands, retained the title to all of the trees standing thereon that were then of a size suitable to make lum-' *671her; and any saplings or undergrowth, then growing upon the land that were not of a size suitable to make lumber or that have since grown, were not reserved, and pass, under the conveyance, to the vendee. The rights of the parties, under the contract, must be determined by conditions as they then were, rather than as they now are. In removing the timber, the representatives of the vendor must, at their peril, see to it that they take only such timber as was reserved.

¶6Lastly, it is urged that the reservation in the deed was personal to the vendor, and the right to remove the timber, not having been exercised by him in his lifetime, his right cannot now be asserted by his heirs. To this argument we cannot agree. The timber which he reserved belonged to him, as much so as did any other property. owned by him, and, at his death, it passed as his other property to his heirs at law.

¶7Petition overruled.

/148/ky/670 · .json · Public domain