Ackley v. Elliott

Headnote

Contract — provision in deed of standing timber that grantees were not to return upon land once cut over and cleaned up — where grantees have cut and removed soft wood they are properly restrained from re-entering to cut hard wood remaining.

Ackley v. Elliott, 198 App. Div. 965 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial • department,

entered July 1, 1921, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and granting, a new trial. The action was brought to enjoin the defendants from cutting certain timber on plaintiff’s land, which they claimed the right to cut under a certain deed from plaintiff. They had already cut and removed the soft wood from the tract, the question being whether they could again re-enter and cut and remove the hard wood. The Appellate Division held that the instrument was a deed of certain standing timber, subject to the conditions and limitations that the timber conveyed should be cleaned up and removed as it was cut, and the grantees were not to return upon any portion of the premises so cleaned up after they were once cut over and that such timber was to be cut and removed within seven years. The grantees, therefore, would lose their right to take the standing timber after seven years had elapsed, and if they failed to clean up the timber they had bought, when the premises were first cut over.