Appeal from SUPERIOR COURT OKANOGAN COUNTY. Superior Court No: 93-2-00304-0. Date filed in Superior Court: 1/18/95. Superior Court Judge signing: JOHN BURCHARD.
Author: Dennis J. Sweeney, Concurring: Philip J. Thompson & John A. Schultheis
SWEENEY, C.J. --We are asked here to decide whether the term "timber" is ambiguous. Reading the contract as a whole, we conclude that it is not. McKillop v. Crown Zellerbach, Inc., 46 Wash. App. 870, 873, 733 P.2d 559, review denied, 108 Wash. 2d 1015 (1987).
On March 14, 1945, Fred and Verona Lampkin deeded perpetual timber rights to the Biles-Coleman Lumber Company (the Lampkin Deed). On March 2, 1956, Theodore and Marguerite Eberle also deeded timber rights to the Biles-Coleman Lumber Company (the Eberle Deed). Both deeds contain similar language: grantors "convey and warrant to BILES-COLEMAN LUMBER COMPANY
Stephen E. Hoglund and his parents, Marlin and Nora Hoglund, (the Hoglunds) are successors in interest to the Lampkin and Eberle properties. Omak Wood Products, Inc., and Crown Pacific Limited Partnership are successors in interest to Biles-Coleman.
The Hoglunds sued Omak Wood and Crown Pacific to quiet title on both pieces of property and for damages and "weed control." Omak Wood and Crown Pacific moved for an order dismissing the claims or, in the alternative, for summary judgment. The Hoglunds also moved for summary judgment. The court concluded that the word "timber" was unambiguous and included all trees existing at the time of the grants. The court also concluded that the Eberle Deed conveyed an interest in trees to grow in the future, but that questions of fact remained as to whether the Lampkin Deed conveyed an interest in future growing trees. It dismissed the Hoglunds' claim for "weed control" and granted partial summary judgment to Omak Wood and Crown Pacific.
The Hoglunds appeal. They claim (1) the deeds' use of the term "timber" is ambiguous, (2) the deeds do not convey any interest in trees not existing at the time of conveyance, and (3) Omak Wood and Crown Pacific cannot own a fee simple estate in timber separate from the land. Omak Wood says the appeal is frivolous and requests attorney fees.
The Hoglunds urge that the term "timber" is ambiguous because it may convey only sawlogs--trees having a diameter greater than 12 inches.
Ambiguity. The question presented is one of law. Harris v. Ski Park Farms, Inc., 62 Wash. App. 371, 375, 814 P.2d 684 (1991), aff'd, 120 Wash. 2d 727, 844 P.2d 1006 (1993), cert. ...