Parham v. Robins , 197 Ga. 386 ( 1944 )

1. Under the law as shown by decisions of this court rendered before the execution of the timber lease involved in the present case, and with knowledge of which law the parties are presumed to have contracted, the word "timber" includes only such trees as are fit to be used in building, manufacturing, or similar construction, and does not embrace saplings suitable only for pulpwood. Accordingly, where the petition alleged that the defendants, under a timber-lease contract for the cutting and removal of "merchantable timber" from described lands of the petitioners, were wrongfully cutting and removing small pulpwood trees, such conduct constituting a continuous trespass and causing irreparable damage, and prayed that the defendants be enjoined, the petition set forth a cause of action, even though insolvency was not alleged, and the court did not err in overruling the general demurrer.

2. The evidence being sufficient to support the allegations of the petition, the court did not err in granting an interlocutory injunction.

3. The special grounds of demurrer are without merit for reasons dealt with in the opinion.

No. 14801. MARCH 7, 1944. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. Jessie Robins, Ella Robins, Pearl Robins, and Mrs. Marie Johnson Fort filed an equitable petition against T. A. Parham, W. B. Allen, and Frank Alsobrooks, alleging that on March 26, 1942, they and Sara Robins executed to T. A. Parham a lease, duly recorded, to certain timber on lands located in Talbot County Georgia, a copy of which was attached as an exhibit to the petition and made a part thereof. This lease, for a consideration of $10,000, granted, sold, and conveyed with a general warranty of title "all of the merchantable timber" upon described lands in Talbot County to T. A. Parham, and recited that, "It is the intention of this conveyance to convey to said party of the second part all of the merchantable timber on all of lands in Talbot County, Georgia, owned by the parties of the first part, whether the same have been definitely and correctly described in detail heretofore in this contract or not, for the consideration named in this contract." It further recited: "The party of the second part, his heirs and assigns, shall have exclusive right of way, with ingress and egress to come upon and across and to cross the said lands and any other lands owned by the parties of the first part or either of them, to locate and operate one or more sawmills at one or more places upon the same, for the purpose of manufacturing the timber into lumber, to erect upon the lands of parties of the first part such buildings as he sees fit to build, use and operate railroads, tramways, and roads across all of the lands of the parties of the first part for the purpose of removing said timber and lumber or anything else he may now or hereafter wish to carry across or over said railroads, tramways, and wagon roads, and he shall have the right to use smaller trees from the said lands along said roads as may be necessary or convenient to build and main [maintain?] the roads, or open the same up. That the party of the second part, his heirs and assigns shall have three (3) years from the date of this deed in which to exercise the free and exclusive right of way granted under this deed, and in said time to build, use, maintain, and operate said roads, and [in?] which to cut and remove said timber and remove all buildings, improvements and additions of all kinds which he may have located upon the lands of the parties of the first part."

The petition further alleged: At the time the said lease was executed perfect title to the property involved was vested in the grantors. Sara Robins, one of the grantors in said deed, died on June 10, 1942, and there has been no administration on her estate, and the title to her interest in the property vested upon her death in her heirs at law who were her sisters, the plaintiffs herein, and she owed no debts at the time of her death. At the time of the filing of the petition, perfect title to the property was vested in the petitioners. The defendant Parham is an operator of sawmills, and placed sawmills on the lands described in the lease, and during the year 1942 had finished cutting from said lands all of the trees that were fit to be manufactured into lumber, and cut said trees into lumber and removed the same from the lands during the year 1942; and at the end of said year there were not left standing on said lands any trees large enough to be manufactured into lumber. On or about October 25, 1943, the defendants entered upon the lands and began cutting and hauling therefrom what is commonly called pulpwood, and continuously from said date and at the present time the defendants have been felling pine trees and sawing them into pulpwood lengths, and have been hauling the same to railroads and shipping the same to some point in Florida, or to some other point in South Georgia, the exact point or points to which said pulpwood is being shipped being unknown to the petitioners. Such trees so felled and cut into pulpwood by the defendants are too small to be manufactured into lumber, or material for building, or kindred purposes, and pine pulpwood is being cut that is as small as four inches in diameter. On information and belief the petitioners charge that T. A. Parham is selling said pine trees to W. B. Allen and Frank Alsobrooks, under an agreement that they are to pay him so much per unit of the said pine trees cut into pulpwood, the exact nature and terms of said agreement being unknown to the petitioners. The entering upon said lands and the cutting and removing of said pine trees therefrom constitute a continuing trespass, as neither T. A. Parham nor his agents or assigns have any right under the said lease to enter upon the lands and cut therefrom trees that are too small to be manufactured into lumber or other building material, and such acts cause irreparable damage to the freehold. On account of the circumstances hereinbefore alleged and other circumstances, and to prevent circuitry and multiplicity of actions, the petitioners are seeking a restraining order enjoining the defendants, their agents, servants, and assigns from cutting said pine trees. The defendants have already cut from said lands pine trees that were too small to be manufactured into lumber or building materials and have sold the same, of the value of $500 or other large sum, for which judgment is asked against them; and the cutting and removing of such trees will cause the petitioners to suffer irreparable damages, for which they can not be fully compensated in money; and having no adequate remedy at law, they bring this petition seeking equitable relief, and against all of the defendants to avoid a multiplicity of suits. The defendants were notified to have and produce at any and all hearings and trials of the case the original lease set out as an exhibit to the petition. The petitioners prayed (a) for process; (b) that a restraining order be issued enjoining the defendants, their agents, servants, and assigns from cutting and removing from the lands any pine trees that are too small to be manufactured into lumber and other building materials; (c) that T. A. Parham be restrained and enjoined from transferring or assigning the lease; (d) and for other relief to which the petitioners may be entitled.

The defendant Parham filed an answer admitting that Allen and Alsobrooks entered upon the lands with his permission to cut pulpwood at so much per unit, which pulpwood he alleged was "merchantable timber" and the cutting of which he alleged was authorized under his contract with the petitioners. He admitted that he was an operator of sawmills, but alleged that he had not completed cutting all of the "merchantable timber," and had not cut or sold any timber that was not "merchantable timber," and that while he had not transferred or assigned his lease, he should not under any authority of law be restrained from selling or transferring the contract.

The defendants Allen and Alsobrooks filed separate answers, admitting their entry on the lands under an agreement with T. A. Parham, and cutting "merchantable timber" therefrom, none of which, they alleged, was too small to be manufactured into lumber or other building material; that they so acted under the belief that under the contract between the petitioners and Parham they had the right to buy from him such timber as they cut. Allen alleged that he had not removed any of the timber cut by him for pulpwood. Alsobrooks alleged that he had removed one carload for pulpwood timber, but had not cut or shipped any timber less than six inches at the butt, twelve inches above the ground.

The defendants together demurred generally and specially to the petition. The court overruled the demurrers, and after hearing evidence continued in force a restraining order, which had been granted upon the filing of the petition.

In their bill of exceptions, the defendants assign error on the judgment overruling the demurrers, and allege that this entered into and controlled the further progress and result of the case, and that the final judgment was not a legal termination of the case. Error was also assigned on the admission of evidence construing the contract between the petitioners and Parham, and on the judgment continuing the restraining order in force until the further order of the court. 1. The controlling question in this case is the meaning of the term "merchantable timber" as the same appears in the timber-lease contract under which the defendants claim the right to cut and remove trees as small as four inches in diameter for pulpwood. In 17 R. C. L. 1094, § 21, it is said: "Contracts or deeds for the sale of standing timber frequently specify the size of the timber sold, but sometimes the term ``timber' is used without definition as to trees included within its scope, and where this is the case resort must be had to the definition of the term as well as to the intention of the parties as manifested by the agreement. Where there is nothing to indicate that the contract was made with reference to any construction of the word ``timber' peculiar to the locality, and the parties appear to have used the term in its customary meaning, it is generally held that firewood is not included. The materials of which ``firewood' or cordwood are composed can not properly be called timber though timber might be used for that purpose, and therefore in a contract for the purchase of timber the purchaser acquires no title to trees not suitable for any purpose but firewood." In Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 113,116 (90 S.E. 960), this court quoted with approval a definition of timber found in Dickinson v. Jones, 36 Ga. 97, and repeated in Hancock v. Massee Felton Lumber Co.,127 Ga. 698 (56 S.E. 1021), which is as follows: "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 this would include walnut, hickory, poplar, cypress, pine, gum, and other forest trees." The conveyance considered in the Vandiver case, supra, described the timber conveyed as "all the timber of whatever kind and description now growing or being upon," etc. The grantee was given an easement of entry upon the land for the purpose of cutting the timber and removing the same, and this was considered as evidencing a purpose to purchase the trees for use as timber, and to indicate 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; and the court said: "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. . . 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." For a similar construction of conveyances of timber see Pennington v.Avera, 124 Ga. 147 (52 S.E. 324); McRae v. Smith,164 Ga. 23 (137 S.E. 390); Gaskins v. Futch, 169 Ga. 464 (150 S.E. 557); Neal Lumber c. Co. v. O'Neal, 175 Ga. 883 (166 S.E. 647); 38 C. J. 143; 41 Words Phrases (perm. ed.), 630; 34 Am. Jur. 493, § 2; 91 A.L.R. 1462. Whether or not the word "timber" as used in the conveyance, nothing further appearing therein to indicate the intention of the parties as to its meaning, is correctly defined in the foregoing decisions of this court, that definition must control its meaning in the present conveyance. The parties to the conveyance are presumed to have known the law of this State, as declared in the decisions of this court, at the time of its execution, and hence, to have intended that the word "timber" when used therein should have the meaning that the decisions of this court theretofore gave it.

We think that the conveyance contains expressions which clearly indicate the intention of the parties as to what trees should come under the conveyance. It authorizes the grantee to locate and operate one or more sawmills upon the premises "for the purpose of manufacturing timber into lumber." It also authorizes the grantee to use smaller trees for the purpose of building and maintaining roads for ingress and egress. In providing for the location of sawmills for the purpose of manufacturing the timber into lumber the parties clearly manifested an intention that the timber thereby conveyed was timber suitable for manufacturing into lumber; and by authorizing the grantee to cut smaller trees in connection with the roadways, they manifested an intention to place a minimum size upon the timber conveyed by the deed.

We think that the word "merchantable," found in the granting clause immediately preceding the word "timber," has the effect of contracting rather than expanding the word "timber." It is obvious that any trees conveyed under the deed must first meet the definition of "timber." Then the word is qualified by "merchantable," thus restricting the trees conveyed to those only which meet the definition of "timber" that is merchantable. Accordingly, the petition, alleging that the defendants were cutting and removing trees that were too small to be manufactured into lumber and other building material, shows that such cutting is not authorized by the timber conveyance, and, hence, that a continuing trespass is being committed. It further alleges that the damages are irreparable, and thus states a cause of action, although the defendants are not alleged to be insolvent. Couey v. Talalah Estates Cor., 183 Ga. 442, 445 (191 S.E. 822). The court did not err in overruling the general demurrer.

2. The exception to the interlocutory injunction is based upon the contention that the error in overruling the general demurrer to the petition entered into and rendered this judgment illegal. It is conceded that the evidence is sufficient to authorize the injunction. Under the ruling in division 1 of this opinion, this exception is without merit, and the court did not err in granting an interlocutory injunction.

3. The petition alleges that Sara Robins, one of the grantors in the timber-lease contract, died in 1942, that there has been no administration on her estate, and that her interest in the property here involved vested in her heirs at law, who are the petitioners in the present case, and that Sara Robins owed no debts at the time of her death. The petition is not subject to the special demurrer based upon the ground that it is not shown that she died intestate. Nor is the petition subject to the special demurrer upon the ground that no substantial equitable relief is prayed against the resident defendants, and that all the substantial relief sought is against the non-resident defendant, T. A. Parham. Nor is that portion of the petition, praying that he be enjoined from transferring the timber lease, subject to demurrer. If it be shown, as alleged in the petition, that Parham has no further rights under the timber lease, the petitioners are entitled to a judgment in this case that will afford them adequate protection against future claims by Parham, or his transferees under the lease involved. The petition was not subject to any ground of special demurrer, and the court did not err in overruling the same.

Judgment affirmed. All the Justices concur.