Vandiver v. Byrd-Matthews Lumber Co. , 146 Ga. 113 ( 1916 )

Evans, P. J.

(After stating the foregoing facts.)

1. “Timber” is not a word of invariable meaning, and the particular meaning to be given to it depends on the connection in which it is used. In construing a deed conveying timber, it is proper to take in consideration not only the terms of the conveyance but also the purposes of the parties to the deed. Pennington v. Avera, 134 Ga. 147 (53 S. E. 324). In discussing the relative rights of a life-tenant and the remainderman, Judge Harris, after declaring that the former is not allowed to cut timber or to commit any other kind of waste, said: “Timber is used technically to denote green wood of the age of twenty years or more, such as oak, ash, elm, beech, maple, and with us would include walnut, hickory, poplar, cypress, pine, gum, and other forest trees.” Dickinson v. Jones, 36 Ga. 97, 104. There is an intimation in Handcock v. Massee & Felton Lumber Co., 127 Ga. 698 (56 S. E. 1021), that this definition may not be sufficiently comprehensive. We do not think any absolute, technical definition should control in ascertaining the parties’ conception of the meaning of a word descriptive of the subject-matter of their contract. The deed discloses that the grantor intended to convey all trees of whatsoever land and description, then growing or being on the land, which properly were classifiable as timber, save only so much as was necessary for firewood and keeping up the farm. In demanding and receiving an easement of entry upon the land for the purpose of cutting timber (trees) and removing the same, the grantee evinces a purpose to purchase the trees for use as timber. It would therefore seem to be clear that the deed was intended by the parties to operate only on such trees as came within the conception of the parties as to the meaning of "timber” at the time the deed was executed. One party was contracting to sell and the other to buy trees growing and being on the land, which were to be removed therefrom. There is nothing in the deed to indicate that the parties intended to establish a nursery for cultivation of sprouts and saplings for removal after they had developed by growth into trees of such size as to be convertible into lumber suitable for building and allied purposes. Under the phraseology of this deed, we think that the word “timber” means such trees as were fit to be used in building, manufacturing, or similar construction, and was not intended to embrace sprouts and saplings. See Broad River Lumber Co. v. Middleby, 194 Fed. 817, 819 (114 C. C. A. 521); Hicks v. Phillips, 148 Ky. 670 (147 S. W. 42, 47 L. R. A. (N. S.) 882); Anderson v. Miami Lumber Co., 59 Or. 149 (116 Pac. 1056); Gulf Yellow Pine Lumber Co. v. Monk, 159 Ala. 318 (49 So. 248). More than twenty years elapsed from the purchase of the timber before the assignee of the grantee began to cut it. The present owner of the timber conveyed to John Martin is engaged in operating a sawmill for converting trees into lumber. Such trees as were not suitable to be converted into lumber for building, manufacturing, or for any allied purpose, at the time of the conveyance to John Martin, would not fall within the operation of the deed from M. L. Van-diver, executed in 1894. The plaintiff purchased the land subject to -the prior sale of the timber; he was entitled to all the timber upon the land which was not embraced in the conveyance to Martin,

2. The plaintiff owned other land contiguous to lot 2. The Byrd-Matthews Lumber Company owned the timber on a large, area of land beyond land lot 2. The evidence authorized a finding that the plaintiff knew that the defendants were purchasing a right of way through lots intervening their mill and their timber, for the purpose of constructing a tramroad over which the trees were to be hauled to the mill. To effectuate this object the plaintiff sold to the defendants a right of way over other land, and knew that the defendants intended to use the tramroad over lot No. 2 as a part of the line of tramroad; he discussed with the agents of the defendants the selection of a right of way through lot No. 2, and was employed by the defendants to repair a road on lot No. 2 which had been injured by the construction of the tramroad over it. No objection was ever urged against the plan of the defendants to construct the road through his property until the defendants had incurred great expense on his implied assent, and not before the tramroad had been nearly completed through his property. As to these matters of alleged estoppel the plaintiff joined issue. If the plaintiff stood by while the tramroad was being constructed at heavy expense, and encouraged the defendants by selling connecting rights of way over other land, and by other acts, to believe that he impliedly assented to the use of the tramroad over lot No. 2 for hauling other timber of the defendants, and took no steps to prevent the work until it was nearly completed through his land, he would be estopped from afterwards obtaining an injunction against the completion of the tramroad and its use for hauling other timber of defendants. Southern Marble Co. v. Darnell, 94 Ga. 231 (21 S. E. 531). There was no evidence that the freehold was damaged by the construction of the tramroad; and furthermore the court required bond of the defendants against loss by the plaintiff on this score.

The judgment must be modified so as to extend the injunction against cutting all trees which were not of sufficient size to be re.garded as timber trees on January 19, 1894.

Judgment affirmed, with modification.

All the Justices concur.