CARLSON v. RESERVATION RANCH, 118 Or. App. 512 (1993)

848 P.2d 616

CV 89-0623; CA A72403Oregon Court of Appeals.Argued and submitted December 14, 1992
Reversed and remanded March 10, 1993 Respondent’s petition for reconsideration allowed by opinion May 19, 1993 See 120 Or. App. 435 (1993)

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Appeal from Circuit Court, Douglas County.

Edwin E. Allen, Judge. (Final Judgment)

Frank R. Alderson, Judge pro tempore. (Motion for Summary Judgment)

Larry O. Gildea, Eugene, argued the cause for appellant. With him on the briefs were Michael N. Warshafsky and Gildea
Facaros, Eugene.

Lann D. Leslie, Eugene, argued the cause for third-party plaintiff — respondent. With him on the brief was Atherly, Butler Burgott, Eugene.

Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.

EDMONDS, J.

Reversed and remanded.

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EDMONDS, J.

Plaintiff appeals from a judgment upholding the reservation of a timber interest in a deed. Plaintiff assigns error to the trial court’s entry of partial summary judgment for defendant Reservation Ranch (defendant)[1] and to the court’s holding following trial that the reservation was valid. We reverse, because the court improperly granted partial summary judgment.

This case concerns 466 acres of timberland in Douglas County. The uncontroverted facts are that in 1945, Don Witcher acquired the subject property. In 1949, the Witchers, as husband and wife, conveyed it to Umpqua Plywood Corporation. The deed contained a reservation that provided, in part,

“reserving, however, unto the grantors all timber now growing or being or which may hereafter be grown, upon said premises, with the right of ingress and egress through said lands for the purpose of logging and removing the same[.]”[2]

Plaintiff purchased the property in 1968.[3] In 1985, defendant Reservation Ranch purchased[4] the reservation expressed in the deed and subsequently began logging on the property. Plaintiff brought this action seeking a declaratory judgment as to the ownership of the timber and for damages for timber trespass. The trial court granted a partial summary judgment for defendant, holding that the reservation included an unlimited interest in all trees in perpetuity. The case went to

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trial on the issue of whether the reservation was void, and plaintiff argued unsuccessfully that the reservation is as broad as the grant and, if given legal effect, it would result in no interest being conveyed by the grant.

A party is entitled to summary judgment if the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. ORCP 47C. On appeal, we view the record in the light most favorable to the party opposing the motion. Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). When the terms of the document in question are ambiguous, the meaning of specific terms becomes a question of fact. Libby Creek Logging, Inc. v. Johnson, 225 Or. 336, 339, 358 P.2d 491 (1960). A provision in a document is ambiguous if it has no definite significance and if it is capable of more than one sensible and reasonable interpretation. A provision is unambiguous if its meaning is so clear as to preclude doubt by a reasonable person Deerfield Commodities v. Nerco, Inc., 72 Or. App. 305, 317, 696 P.2d 1096, rev den 299 Or. 314 (1985).

Plaintiff first argues that summary judgment was improper because the reservation language “now growing or being or which may hereafter be grown” is ambiguous. He asserts that the language does not expressly state the duration of the reservation. In Franke v. Welch, 254 Or. 149, 458 P.2d 441
(1969), the court considered a timber reservation that included the phrase “growing, grown or to be grown” and held that such language created a perpetual interest in the timber. The court said:

“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 timber in existence at the time of the execution of the deed and timber which 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’).” 254 Or at 152.

Here, the phrase “which may * * * be grown” indicates an intent to distinguish between timber in existence at the time of the execution of the deed and timber which was not then in existence but which may come into existence after the execution of the deed. As in Franke v. Welch, supra, the language

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used in this reservation created a perpetual interest in the timber.[5]

Plaintiff also argues that the court erred in granting summary judgment because the phrase “all timber” is ambiguous. Plaintiff argues that the deed reserved timber growing in 1949 and later grown, but only to the extent that the timber was merchantable in 1949. Defendant contends that the term “timber” unambiguously refers to all trees, whether or not merchantable in 1949.[6]

The word “timber” or the phrase “all timber” in a deed or contract, without further clarification in the instrument, is ambiguous. Bross v. Peyton, 252 Or. 482, 484, 450 P.2d 760
(1969); Ambogast v. Pilot Rock Lbr. Co., 215 Or. 579, 585, 336 P.2d 329 (1959). Here, the deed does not contain any clarification. Defendant argues that the use of the word “all” or the addition of language creating a perpetual interest in the timber sufficiently clarifies the word “timber.” We do not agree. That language tells us that “all” timber is being conveyed in perpetuity, but does not tell us what the parties meant by the word “timber.” The use of the phrase “all timber,” without further clarification in the deed, creates an ambiguity that precludes summary judgment.

Because of our resolution of this case, we do not consider plaintiff’s second assignment of error.

Reversed and remanded.

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