Stephens v. Gordon, , 22 S.C.R. 61 (1893)
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Stephens v. Gordon, , 22 S.C.R. 61 (1893)
Supreme Court of Canada
Stephens v. Gordon, 22 S.C.R. 61Date: 1893-05-01William H. Stephens (Plaintiff) Appellant;andAaron Gordon and John Gordon (Defendants) Respondents.1893: March 9, 19; 1893: May 1.Present: Strong C.J., and Fournier, Taschereau, Gwynne and Sedgewick JJ.ON APPEAL FROM THE COURT OF APPEAL FROM ONTARIO.Agreement, construction of-Way-Timber-Removal of, necessary.The plaintiff was the owner of a farm of about a mile in breadth and five-sixths of a mile in length. About two-thirds of the farm was heavily wooded, and the rest of it was cleared and cultivated. The defendant became the purchaser of the trees and timber upon the land, under an agreement, which provided among other things, that the purchaser should have "full liberty to enter into and upon the said lands for the purpose of removing the trees and timber, at such times and in such manner as he may think proper," but reserved to the plaintiff the full enjoyment of the land "save and in so far as may be necessary for the cutting and removing of the trees and timber." To have removed the timber through the wooded land at the time it was removed, it would have involved an expenditure which would have possibly amounted to a sacrifice of the greater portion of the timber.Held,-Affirming the judgment of the court below, that the defendants had a right to remove the timber by the most direct and available route, provided they acted in good faith and not unreasonably, and the reservation in favour of the plaintiff did not minimize or modify the defendants' right under the general grant of the trees, to remove the trees across the cleared land. Gwynne J., dissenting.APPEAL from the judgment of the Court of Appeal for Ontario[1] reversing the judgment of Boyd C., in the Chancery Division.The appellant (plaintiff) was the owner of a farm of some 500 acres of land, in the 8th concession of Chatham. About a third of the whole tract was cleared and cultivated, and the rest was heavily wooded. In 1887 the plaintiff sold under an agreement to one A. Tierce, who afterwards assigned to the respondent, the trees and timber upon the land, except black ash and white oak then standing growing and being upon the said land, with a proviso that it should be removed within a certain period. The deed under which the respondent cut and hauled the timber contained the following way-leave for taking the timber:"The said party of the second part, his agents, servants and workmen, with or without horses, carts, wagons or sleighs, shall at all times within three years from the said first day of March now next, have full liberty to enter into and upon the said lands, and to fell the said trees and timber in such manner as he or they shall think fit, and cut and convert the same into such convenient logs, bundles or stacks as he or they shall think proper, with full liberty to bring horses, cattle, wagons, trucks, carts and sleighs in and upon the said land for the purpose of removing the said trees and timber, at such times and in such manner as he or they may think proper." And also the following covenant for title: "And the said party of the first part for himself, his heirs, executors and administrators, covenants, promises and agrees to and with the party of the second part, his heirs, executors, administrators and assigns, that he has a good title to (sic) fee simple to the said lands, and good right, full power, and absolute authority to sell and dispose of the said timber and trees, and that they are free from all encumbrances of any kind whatsoever."The deed also contained the following covenant on the part of the purchaser:-"The said party of the second part for himself, his heirs, executors, administrators and assigns, covenants with said party of the first part, his heirs, executors, administrators and assigns, that whenever he commences cutting on any portion of said lands he will lumber said lands clean, except said black ash and white oak, and that said party of the first part, his heirs or assigns, shall have the full and free use and enjoyment of the said land during said three y...See the full content of this document
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