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[3] Thus, Jens had two kinds of relationships. Jens and Christian were
farming partners who operate a cattle ranch on the land: each summer they
took their cattle from Lemon Creek to pasture for the summer on this land.
They raised hay at Lemon Creek for the summer and then returned the cattle
to Lemon Creek for each winter. As well, Jens, Christian, Noble and
Gertrude were tenants in common of the land. Together, the four appear to
pay some of the expenses relating to the land. Jens' income tax return
relating to the ranch indicates that he paid taxes on account of the land
owned with his three siblings, but there is no evidence that he paid rent. [4] Jens Larsen is 57. He lives near Slocan, farms and works for a firm in the forest industry. His brother Christian is 51 and lives nearby. Christian works full-time as a loader operator for Slocan Forest Products. Their sister, Gertrude, and brother, Noble, are also in their 50's. They live in Alberta and in Utah, respectively. Jens and Christian had a direct interest in continuing the business of grazing and summering cattle on the property. Gertrude and Noble's involvement with the property consisted of their interests as tenants in common. Jens testified that the family decided to sell the timber rights for the principal purpose of allowing his sister to sell her interest in the land. Jens could not pay her otherwise. The removal of diseased trees and opening up of more pasture land were secondary to his sister's sale. The four children owned all of the land as tenants in common and, according to Gertrude's letter of 21 January 1991, were equally responsible "for the debts incurred towards the farm". [5] Jens' testimony is that Gertrude always wanted to sell her interest in the land. However, from the evidence, the letter of 21 January 1991 caused Jens to realize that Gertrude was going to sell and Jens had to make arrangements to buy. He did not testify that any of the other siblings intended otherwise after the letter of 21 January 1991. From 21 January 1991 on, matters proceeded on the basis that Gertrude was going to sell her interest in the land and Jens was going to buy all or part of her interest in the land. [6] In 1991 Jens obtained the appraisal of the land without reference to the value of the timber on the land. He testified that he knew then that he might sell the timber to pay Gertrude out. He never obtained bids or a valuation of the timber in 1991, but he thought it was worth about $400,000 at the point in time. By 1994 Jens thought the timber was worth $500,000. During this period he only considered the timber which was of a butt diameter of 12 inches or more. However, Gertrude and Noble insisted on selling timber of a butt diameter of 10 inches or more because they thought that they would leave too much value if the cut was made on the 12 inch basis. The divergence was resolved at the time the contracts were signed. Cutting was done on a 10 inch basis. [7] In 1994 Jens thought the market price of timber was right. He decided to sell the timber rights. He solicited bids from four sources on the timber rights in the spring and took the highest bid at $70 per cubic metre. The Court finds that when Jens was doing these things he was acting for the four Larsens. |