## Facts

- In October 1924, owners of two Grant County, Oregon tracts (an 80-acre tract and a 160-acre tract) executed timber deeds in identical form conveying to a grantee “all of the Timber and Logs now standing, laying and being” on each tract.
- Each deed granted the grantee the exclusive right to enter, cut, and remove the conveyed timber for 25 years, with a contractual option to extend the removal period by yearly payments per 40-acre tract.
- The plaintiffs later acquired the fee interests in both tracts; the lumber company became successor to the grantee’s timber interests under both deeds.
- The parties executed an agreement extending the removal deadlines into October 1964 for each tract.
- A dispute arose over whether the lumber company could cut (i) only timber merchantable as of 1924, or (ii) timber that became merchantable during the deed term and extensions.
- The plaintiffs also challenged the 160-acre deed’s land description as void for uncertainty.
- The plaintiffs sought declaratory relief defining the timber rights and the validity of the challenged description; the trial court limited the timber grant to timber merchantable in 1924 and upheld the land description’s validity.

## Issues

1. Whether deeds conveying “all of the Timber and Logs now standing, laying and being” granted only timber merchantable at the 1924 deed dates or also included later-grown or later-maturing timber cut during the term.
2. Whether an agreement extending the time to remove timber enlarged the subject matter of the grant to include timber that became merchantable after 1924.
3. Whether the land description in the 160-acre tract deed was so uncertain that the deed was void.

## Decision

- The court held the deeds conveyed only timber that was merchantable and acceptable for cutting into saw logs at the time of the 1924 grants.
- The court held the extension agreement extended only the time to remove timber already conveyed and did not add later-grown or later-maturing timber to the grant.
- The court held the 160-acre tract’s deed description was not fatally defective and was sufficient to identify the land with reasonable certainty.
- The trial court’s decree was affirmed.

## Legal Principles

- A timber deed conveying “timber and logs now standing” ordinarily transfers only timber merchantable at the time of execution absent clear language showing an intent to include future growth.
- A long cutting period or extendable removal term does not, by itself, imply a grant of after-acquired timber; it typically provides time to remove timber within the original grant.
- An agreement extending the time for removal is construed as temporal only unless it expressly enlarges the property interest conveyed.
- A deed is not void for uncertainty if the description provides a reasonably certain means to identify the land; extrinsic evidence may be used to apply (but not contradict) the description.

## Conclusion

The court construed “now standing” timber deeds as conveying only the then-merchantable timber crop, treated the extension as merely extending the removal deadline, and upheld an imperfect land description because the tract could be identified with reasonable certainty.


Arbogast v. Pilot Rock Lumber Co., 215 Or. 579, 336 P.2d 329 (Or. 1959)