Mills & Williams v. Ivey , 1908 Ga. App. LEXIS 372 ( 1908 )

Powell, J.

Ivey entered into the following contract with one Dobson: “State of Georgia, County of Thomas. This indenture, made this first day of May in the year 1902, between Will Ivey, of the first part, and J. B. Dobson, of the second part, both of said county and State, witnesseth, that the said party of the first part, for and in consideration of the sum hereinafter mentioned, has .granted, bargained, sold, demised, and leased to said party of the ;seeond,,part, and by these presents does grant, bargain, sell, demise, and lease to said party of the second part, their heirs and .■assigns, all and singular all the pine timber for sawmill purposes on the following described land [here follows a description of the land and the payments to be made]. And it is expressly understood and agreed by and between the parties hereto that the party of the second part is to have free use and enjoyment of said timber after above payments have been made. The party of the first part hereby agrees that the party of the second part shall have the full and exclusive right to run tramroads and wagon roads on and •across said land, and the party of the first part hereby agrees, and binds his heirs and assigns, executors and administrators, to forever warrant and defend the privileges hereto granted to the party of the second part.”

On December 19, 1905, the grantee transferred the instrument ■and his rights thereunder to the plaintiffs in error, Mills & Williams, who subsequently entered upon the land and proceeded to box and work the pine timber for turpentine purposes. Ivey brought his action in the city court of Thomasville against them to recover damages to the timber, contending,- “that the instrument to Dobson was not an absolute sale of the timber, but was ■a mere lease or license to cut the same for sawmill purposes, in which no. time was specified as to when the timber should be removed, and that therefore it had to be cut and removed within a reasonable time; also that the instrument to D.obson being only a lease and specifying 'all and singular the pine timber for sawmill purposes/ this statement restricted Dobson to the use of the timber for the purpose stated therein; and that Dobson having no right to turpentine the timber upon the land, his transferees, Mills & Williams, who acquired only his rights and privileges in the premises, had no right to turpentine the same; the contention being that Dobson himself, under the lease, could not have turpentined the timber, as this would have put a burden upon the land that was not contracted for, and not within the intention of the parties.” The defendants resisted both of these contentions. The judge pro hac vice rendered judgment in favor of the plaintiff; and the defendants bring error. At the trial term the defendants demanded a jury trial, which was refused, and this is also assigned as error.

We shall elaborate only the proposition stated in the first headnote, as the others rest upon such clear authority as not to require discussion. In the fourth headnote in the case of Martin v. Peddy 120 Ga. 1079, the following language is used: “In a contract of sale of growing timber for sawmill purposes, the words ‘one certain lot of yellow pine timber for sawmill purposes’ mean timber suitable for sawmill purposes.” In that case the purchase-price to be paid for the license was to be determined by a survey, and the question sub judice was whether under the conveyance the acreage of lands containing timber not suitable for sawmill purposes was to enter into the computation of the purchase-price; and the court held that the words “for sawmill purposes” should have the same effect, in determining this question, as if the expression “suitable for sawmill purposes” had been used. In Allison v. Wall, 121 Ga. 823, 828, the court held that under a conveyance using the language “all the pine trees growing and being upon certain tracts or parcels of land for sawmill and turpentine purposes,” the grantee took the right to use only such trees as at the date of the conveyance were suitable for the purposes mentioned. In neither of these cases was the question presented or considered whether, under such a conveyance, the grantee took the right to use for any other purpose the trees which did pass. Now it was held in Gray Lumber Co. v. Gaskin, 122 Ga. 342 (5), that where a conveyance is made of “all the timber suitable for sawmill purposes,” the grantee takes the right to use such timber as is included within the descriptive terms, for any purpose he may see fit, the words “suitable for sawmill purposes” being a description of the timber, and not a limitation on its use. In Pennington v. Avera, 124 Ga. 148, the question was whether, under the particular language of the instrument then up for construction, the grantee took the right to use the tops of trees; and in the course of the '■discussion, some of the language used by Justice Cobb seems to connote the idea that the effect of the three decisions cited above is that under the words “for sawmill purposes/’ the grantee might use the timber actually conveyed for any purpose. However, the point was not then before the court, and nothing was actually decided as to the question now presented. Those who have lived .in the timbered portions of the State know that many people are willing to sell their timber for sawmill purposes who are not willing that it should be put to other uses. For example, many farmers believe (whether correctly or not the writer is unable to say) that the working of timber for turpentine injures the soil, while the cutting of the trees for lumber does not. Also, a farmer with a small body of timber near his home might be willing to have-it cut and carried away at once in the manner in which sawmill people usually operate, and yet be unwilling to allow it worked for-turpentine, a use which is usually attended with the presence of turpentine negroes at frequent intervals for a long period of time.. There is also a difference between the operations of cross-tie cutters and sawmill men which might render the use of the timber by one of them more objectionable than its use by the other. On the other hand, one may be willing to grant a license to .use his timber for turpentine purposes who is unwilling to have it cut for sawmill or other similar purposes. Hence, in timber conveyances, it is not unusual for the grantor to specify the purpose for which-the timber is to be used; and the expression of such purpose ought to limit accordingly the concurrent right of ingress and egress. Suppose the language used in the conveyance were “all the timber-on certain lands for turpentine purposes;” it would hardly be contended that the grantee could cut the trees into lumber,' cross-ties,, or fire-wood. While, under such a description (to follow the ruling-in the cases of Martin v. Pcxldy and Allison v. Wall), the privilege,granted would extend to all such trees as were suitable for turpentine purposes at the date of the conveyance, and to those only, yet. the license would not be extended beyond the uses specified, even, as to those trees. Any other construction would be a palpable violation of the manifest intention of the parties. So also, under a grant of “all the timber on the certain lands for sawmill purposes,” the privilege conveyed extends to all such trees as were suitable for those purposes at the date of the conveyance, and to those only; but the license will not be extended beyond the uses. specified, even as to those trees; and this view is harmonious and not inconsistent with the cases cited. In the construction of contracts, the popular.conception of the meaning of words and phrases is of great weight; and, as one who has lived the greater portion of his life in the pine woods, the writer is sure that the meaning here given coincides with what the people there generally understand by these expressions. • ’ Judgment affirmed.