Adel Manufacturing Co. v. McDermid , 1920 Ga. LEXIS 124 ( 1920 )

George, J.

(After stating the foregoing facts.)

The lease in question conveyed to the plaintiff in error, for a valuable consideration, “all and singular the timber suitable for sawmill purposes ” on a described tract of land. The phrase “ timber suitable for sawmill purposes” is descriptive of the property conveyed, and is not a limitation upon its use. Gray Lumber Co. v. Gaskins, 122 Ga. 342 (50 S. E. 164); Shaw v. Fender, 138 Ga. 48 (74 S. E. 792). It follows that the sale of “timber suitable for sawmill purposes” carries with it the right to use such timber for any purpose for which the purchaser sees fit to use it. If the timber is in fact “suitable for sawmill purposes,” the purchaser may use it for cross-ties. The defendant in error contends that the use of the timber is limited, and relies upon a. clause inserted in the lease after the description of the property conveyed, which is as follows: “To have, cut, and use said described timber for sawmill purposes as aforesaid, with all the rights and privileges of cutting, felling, and hauling the trees on said land suitable for sawmill purposes, and the construction and operating of all necessary tramroads over said land for the purpose of conveying the said sawmill timber to the mill of the said party of the second part, or that may be necessary in the operation of the sawmill business.” This clause can not be construed as a limitation upon the use of the timber. See Marlin v. Peddy, 120 Ga. 1079 (4) (48 S. E. 420); Allison v. Wall, 121 Ga. 823, 828 (49 S. E. 831); Pennington v. Avera, 124 Ga. 147, 149 (52 S. E. 324).

Whether the lease as executed conveyed only the growing timber suitable for sawmill purposes, as contended by. the defendant, or whether it conveyed all timber suitable for sawmill purposes, as contended by the plaintiff, is, under the evidence, a question of fact. The evidence for the defendant tended to show that the lease as executed conveyed only the growing timber suitable for sawmill purposes. In this view of the matter, the interlocutory order, in so far as it enjoined the plaintiff from cutting, felling, or removing any of the dead timber from the land, even though such timber were suitable for sawmill purposes, was authorized under the pleadings and evidence. Inasmuch as the order as passed enjoined the plaintiff from cutting, felling, or removing any of the timber (including the growing timber) suitable for sawmill purposes, the same should be modified. It is not clear that the court intended to enjoin the cutting, felling, and removing of the growing timber suitable for sawmill purposes from the land; but, in view of the terms of the order, we deem it proper to direct a modification of the interlocutory injunction as indicated. If the court intended to permit the plaintiff in error to cut, fell, and remove all the timber, whether growing or dead, suitable for sawmill purposes, we do not hold that it would not be proper to permit the cutting of the dead timber upon the giving of a bond conditioned to pay. the defendant in error any amount wliieh might be awarded to him as damages upon final trial.

In so far as the court enjoined the plaintiff in error from using the land upon which the timber is situated as a manufacturing site, the injunction was authorized. The lease, the material provisions of which are set out above, does not, expressly or by necessary implication, grant the right to occupy the land for the purpose of manufacturing the timber. The right expressly granted is the right to cut, fell, and remove the “trees on said land suitable for sawmill purposes.” If the lease had conveyed all the timber suitable for “cross-tie purposes,” a different question would have been presented, in view of the fact that cross-ties are usually manufactured on the land. The evidence tended to show that the timber was enclosed in a pasture; that the use of the land for manufacturing purposes would result in special injury to the defendant; and that the mill of the plaintiff was, at the time of the execution of the lease and at the time of the hearing, located on lands other than the leased premises.

Judgment affirmed, with direction.

All the Justices concur.