Franke v. Welch, 458 P.2d 441 (Or. 1969). · Go Syfert
Franke v. Welch, 458 P.2d 441 (Or. 1969). Cases Citing This Book View Copy Cite
G Cite
cited 4× by 1 distinct case · …all timber growing, grown or to be grown
43 citation events (5 in the last 25 years) across 9 distinct courts.
Strongest positive: Cushing v. State (me, 1981-08-24)
Treatment trajectory · 1971 → 2026 · click a year to view as-of
1971 1998 2026
Top citers, strongest first. 12 distinct citers.
examined Cited as authority (quoted) Cushing v. State (4×)
Me. · 1981 · quote attribution · 4 verbatim quotes · confidence low
all timber growing, grown or to be grown
cited Cited as authority (rule) Ecosystem Resources, L.C. v. Broadbent Land & Resources, L.L.C.
Wyo. · 2007 · confidence medium
Seq e.g., Franke v. Welch, 254 Or. 149 , 458 P.2d 441, 443-44 (1969).
discussed Cited as authority (rule) Hoglund v. Omak Wood Products, Inc. (2×) also: Cited "see"
Wash. Ct. App. · 1996 · confidence medium
Co. v. Gruber, 7 F.2d 689, 694 (E.D.S.C. 1925) ("All the pine timber now standing or which may be standing or otherwise, during the term hereinafter named.” (emphasis omitted)); Baxter v. Mattox, 106 Ga. 344 , 32 S.E. 94, 97 (1898) (timber "now upon, or that may hereafter grow upon” the land); Baker v. Kenney, 145 Iowa 638 , 124 N.W. 901, 905 (1910) (all "timber and growth of timber . . . forever”); Franke v. Welch, 254 Or. 149 , 458 P.2d 441, 442 (1969) ("all timber growing, grown or to be grown thereon’ ”); Carlson v. Reservation Ranch, 118 Or.
discussed Cited "see" Pioneer Resources, LLC v. Lemargie (2×)
Or. Ct. App. · 2001 · signal: see · confidence high
See generally Franke v. Welch, 254 Or 149, 151 , 458 P2d 441 (1969) (if an instrument conveying timber rights is silent as to the time for removal of the timber, a reasonable time will be implied); see also Emerson v. Hood River County, 223 Or 112, 121-23 , 353 P2d 247 , on reh’g 223 Or 112 , 354 P2d 74 (1960) (summarizing Oregon decisions that have measured a reasonable time).
discussed Cited "see" Carlson v. Reservation Ranch
Or. Ct. App. · 1993 · signal: see · confidence high
See Franke v. Welch, supra, 254 Or at 151 . 6 At oral argument, defendant’s attorney argued that: “It is our position that because there’s a clear expression of intent to reserve all trees in perpetuity that it’s not just limited to merchantable trees. * * * It’s not necessary to look at what was merchantable in 1949 because the deed is not limited to that. * * * The deed applies to all trees.”
discussed Cited "see" Young v. Reynolds Metals Company (2×)
9th Cir. · 1982 · signal: see · confidence high
See Franke v. Welch, 254 Or. 149, 151 , 458 P.2d 441 (1969); Emerson v. Hood River County, 223 Or. 112 , 353 P.2d 247 , modified, 223 Or. 126 , 354 P.2d 74 (1960); Parsons v. Boggie, 139 Or. 469, 470 , 11 P.2d 280 (1932).
discussed Cited "see" Young v. Reynolds Metals Co. (2×)
9th Cir. · 1982 · signal: see · confidence high
See Franke v. Welch, 254 Or. 149, 151 , 458 P.2d 441 (1969); Emerson v. Hood River County, 223 Or. 112 , 353 P.2d 247 , modified, 223 Or. 126 , 354 P.2d 74 (1960); Parsons v. Boggie, 139 Or. 469, 470 , 11 P.2d 280 (1932).
discussed Cited "see" Stuchell v. Department of Revenue (2×)
Or. T.C. · 1981 · signal: see · confidence high
See Franke v. Welch, 254 Or 149, 152 , 458 P2d 441 (1969).
discussed Cited "see" McClung v. Department of Revenue (2×)
Or. T.C. · 1979 · signal: see · confidence high
See Franke v. Welch, 254 Or 149 , 151 nl, 458 P2d 441 , 442 nl (1969).
discussed Cited "see" Layman v. Ledgett (2×)
Wash. Ct. App. · 1977 · signal: see · confidence high
See Franke v. Welch, 254 Ore. 149 , 458 P.2d 441 (1969) for a discussion of the reasons why “a very clearly manifested” intention is necessary to grant a timber right in perpetuity.
discussed Cited "see" Herron v. Rozelle (2×)
10th Cir. · 1973 · signal: see · confidence high
See Franke v. Welch, 254 Or. 149 , 458 P.2d 441 (1969); Baker v. Kenney, 145 Iowa 638 , 124 N.W. 901 (1910); Baxter v. Mattox, 106 Ga. 344 , 32 S.E. 94 (1898).
discussed Cited "see" Herron v. Rozelle (2×)
2d Cir. · 1973 · signal: see · confidence high
See Franke v. Welch, 254 Or. 149 , 458 P.2d 441 (1969); Baker v. Kenney, 145 Iowa 638 , 124 N.W. 901 (1910); Baxter v. Mattox, 106 Ga. 344 , 32 S.E. 94 (1898). 20 The rule invoked in State v. Smith is plainly inapposite here.
FRANKE Et Al, Appellants,
v.
WELCH Et Al, Respondents; WILSON Et Ux, Appellants, v. WELCH Et Al, Respondents
Oregon Supreme Court.
Sep 10, 1969.
458 P.2d 441
Claud A. Ingram, John Day, argued the cause and filed briefs for appellants., William A. Palmer, Portland, argued the causé for respondents. With him on the brief were Casey, Palmer & Feltz, Portland, and James F. Bodie and Bodie, Minturn & Glantz, Prineville.
McAllister, Sloan, O'Connell, Goodwin, Denecke, Holman.
Cited by 24 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 60%
Citer courts: Supreme Judicial Court of Maine (4)
O’CONNELL, J.

This is a suit to quiet title to certain lands conveyed to plaintiffs by defendants Welch and others. Plaintiffs appeal from a decree in favor of defendants.

On July 1, 1946 the Blue Mountain Mills partnership conveyed certain lands to the predecessors in title of plaintiffs Franke and on February 14, 1947 conveyed other lands to the predecessor in title of plaintiffs Wilson. Each deed, after describing the land, contained the following clause: “Save and except all timber growing, grown or to be grown thereon.”

In 1948 the partners of Blue Mountain Mills formed a corporation named Blue Mountain Land Company and transferred to the corporation all of the timber, timberlands and cutting contracts owned by the partnership. The capital stock of the corporation was later acquired by Hudspeth Sawmill Company. Blue Mountain Land Company was dissolved and its assets were distributed to Hudspeth Sawmill Company. .When Hudspeth Sawmill Company indicated its intention to start logging operations on the land in question plaintiffs brought the present suit to quiet title. .; %

[*151] Plaintiffs contend that the reservation of “all timber growing, grown or to be grown” operates only to reserve to the grantors “merchantable timber existing at the time of the execution of the deed with a right to remove the same within a reasonable time together with the growth during that reasonable time for removal.” Defendants contend and the trial court held that the deed reserved to the grantors a perpetual right in the timber.

There is nothing to preclude an owner of timberland from conveying or reserving all of his interest in the timber separate from the land. Whatever the timber interest is called, it may be held separately and as completely as an interest in the soil itself. However, because the use and value of the land is ordinarily affected by the creation of a separate interest in the timber the courts have found it necessary to take this into account in the interpretation of instruments creating such separate interests. It is for this reason that where timber is conveyed and no period of time for the removal of the timber is specified a reasonable time for removal will be implied. This rule of construction is based upon the assumption that ordinarily the owner of the land would not intend to encumber his land beyond a reasonable time by the creation of the separate timber interest. But the owner may, if he[*152] desires, create in Ms transferee or reserve to himself a “perpetual” right of removal if his intention to do so is manifested. Thus the courts have recognized perpetual easements created as a part of the conveyance of the merchantable timber existing at the time of the sale. If his intention is manifested, the landowner can create not only the “perpetual” right to remove timber existing at the time of the sale but also a “perpetual” interest (in the sense of the totality of Ms interest) in all of the timber that will ever be grown on his land with the eoncommitant right of removal. Because the creation of an unlimited interest in all existing timber and all the timber to grow in the future severely curtails the use of the sod itself and greatly diminishes its value, the intention to create such an extensive timber interest must be very clearly manifested.

The question before us is whether the language “growing, grown or to be grown” in the reservation clause of the deed meets this test of clarity of intention. We hold that it does. That part of the clause which reserves timber “to be grown” is used in contrast to timber “growing” or “grown” and clearly indicates an intent to distinguish between tdnber in existence at the time of the execution of the deed (i.e., trees which were “growing” or “grown”) and timber which[*153] was not then in existence but which would germinate and come into existence after the execution of the deed (i.e., trees “to be grown”). We are unable to attribute any other reasonable meaning to the phrase “to be grown.”

Plaintiff argues that the clause “created nothing more than a reservation of merchantable timber existing at the time of the execution of the deed with a right to remove the same within a reasonable time together with the growth during that reasonable time.” If by “growth during that reasonable time” plaintiff means the additional growth on merchantable timber existing at the time of the deed, the phrase “to be grown” in the reservation clause would be redundant. If plaintiff’s position is that the grantor reserved in addition to the merchantable timber existing at the time of the deed the existing timber not then merchantable but which by growth became merchantable within the reasonable removal period, we can only say that we can find no basis for such a speculative interpretation.

The clause reserving to the grantor timber “to be grown” in the future contains no time limitation on the operation of the reservation. If the clause reserved only existing timber we would, applying the rule laid down in our previous cases, imply a limitation that the removal of the timber was to be effected within a reasonable time. That rule is based upon the assumption that ordinarily the parties would intend that the owner of the timber would remove it within a reasonable time after acquiring it.

In the present case our inquiry is not whether the parties intended to put a time limitation on the removal of existing timber, but whether they intended to put a time limitation on the vesting of title to timber[*154] not existing at the time of the contract but which might come into existence in the future. In these circumstances there is no basis for implying an intention to make the clause operable only with respect to timber which came into existence within a reasonable time. On the contrary, considering the common practice in Oregon of cutting timber on a sustained yield basis, it would be more reasonable to interpret a grant or reservation of timber “growing, grown or to be grown” as evidencing an intent to create a perpetual interest in the timber making it possible to cut the timber on a sustained yield basis.

The decree of the trial court is affirmed.

Whether under the circumstances of the particular case the separate interest in the timber is real or personal property, an estate or profit a prendre, an estate of inheritance or estate for years, a legal or equitable interest, are troublesome questions which have received various answers. See Timber Deeds and Timber Contracts, O’Connell and Murphy: Continuing Legal Education Series, Oregon State Bar 1955 (Pamphlet p. 2).

Emerson v. Hood River County, et al, 223 Or 112, 353 P2d 247 (1960); Arbogast v. Pilot Rock Lumber Co., 215 Or 579, 336 P2d 329, 72 ALR2d 712 (1959); Doherty v. Harris Pine Mills, 211 Or 378, 315 P2d 566 (1967).

Baxter v. Mattox, 106 Ga 344, 32 SE 94 (1898); New River Lumber Co. v. Blue Ridge Lumber Co., 146 Term 181, 240 SW 763 (1922); Houston Oil Company of Texas v. Hamilton, 109 Tex 270, 206 SW 817 (1918).

Crain v. Hoefling, 56 Cal App2d 396, 132 P2d 882 (1942); Baker v. Kenney, 145 Iowa 638, 124 NW 901 (1910). See generally, Falk, Timber and Forest Products Law § 89 (1958).

Emerson v. Hood River County, supra; Parsons v. Boggie, 139 Or 469, 11 P2d 280 (1932); Coquille Mill and Tug Co. v. Robert Dollar Co., 132 Or 453, 285 P 244 (1930).