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Standing timber is property subject to be acquired separately from the land on which it grows; but when sold it must be cut and removed within the period agreed upon by the parties or fixed by the court in default of agreement; otherwise said timber reverts to the owner of the land.
Defendant timber owner appealed a judgment of the Seventh Judicial District Court, Parish of Concordia (Louisiana) in favor of plaintiff landowner in the landowner's suit to fix a term for the removal from a tract of land of a quantity of timber which had been excepted from a mortgage foreclosure sale and subsequent sales of the land, in default of which the landowner was to be decreed to be the owner of the timber. The timber owner contended that the trial court was without authority to order the removal within a fixed time because there was no contractual relation between the timber owner and the landowner, that when separated in ownership from the land on which it stood the timber became an immovable possessing equal rank and dignity with the land, and that the trial court erred in setting the length of time allowed.
Did the trial court err in ordering the removal of timber within a fixed time?
The defendant gave a mortgage on the land and consented that the land be sold in default of the payment of the debt. The defendant remained silent, permitted the land to be sold separately from the timber, and acquiesced therein, and now claims to own the timber while admitting that the land belongs to the plaintiff. The defendant by its conduct placed it in the power of, and made it possible for, the mortgagee to sell the land separately from the timber and thereby to bring about the creation of two separate estates. Hence there were created two separate estates as perfectly and completely as if the defendant had made a conventional sale of the land and reserved to itself the timber. The plaintiff therefore occupies the same position towards the defendant with respect to the timber as it would have occupied if it had purchased the land from the defendant. Whatever contractual relations existed between the defendant and its mortgagee with regard to the timber passed to the present plaintiff, owner of the land.
It is further contended that this court has never fixed a time limit for the removal of timber in a case where the contract between the parties is silent on the subject, and that any expressions that the court might in some cases fix such a limit, are purely obiter. The very cases which counsel cite in support of this contention hold to the contrary. In Savage v. Wyatt Lbr. Co., 134 La. 627, 64 So. 491, the court fixed six months from the date the judgment became final in which to remove the timber, and decreed that at the end of such time the defendant should have no claim to any timber remaining on the land. In the case of Woods v. Union Saw Mill Company, 142 La. 554, 77 So. 280, the court fixed two years from the date the judgment became final within which to remove the timber, and decreed that all timber remaining on the land at the expiration of the two years shall belong to the owner of the land. In the two cases cited there was a time limit fixed by consent, but was qualified by the stipulation that, if the timber was not removed within the time fixed, the owner of the timber should have further time to remove the timber on paying the taxes. After the fixed period had expired, the contract stood as though no time had been fixed, and the court so treated it, and held that the right to remove the timber could not be continued indefinitely, and that the owner of the land had the legal right to have the time definitely fixed.