Warren v. Ash , 129 Ga. 329 ( 1907 )

Evans, J.

(After stating the facts.) The transaction between the plaintiffs and Smith, Sims & Morea was a sale of a shingle-mill, and the timber on certain described land, with certain privileges in aid of a contemplated manufacture of the timber. The writing clearly -reflects the intention of the parties to have been that the trees were to be cut and removed from the' land within a reasonable time from the date of the conveyance. Therefore the estate which the purchaser acquired in the trees was a fee, determinable on a failure to cut and remove the timber within a reasonable time. McRae v. Stillwell, 111 Ga. 65 (36 S. E. 604, 55 L. R. A. 513). The plaintiffs stipulated in their conveyance that the purchasers of the timber and mill should have a lease of the mill-site for five years, and longer if necessary, but they were to pay a reasonable rental after five years. This stipulation affords a clear inference that the parties estimated a reasonable time within which to cut and remove the timber would not be less than five years. Under this conveyance the purchasers acquired an estate in the trees, and not a mere license to cut the "timber from the land. The grantees by moving their mill did not forfeit their estate in- such of the trees as were purchased that remained standing on the land. Forfeiture of title to the trees would have resulted only from failure to cut and remove them within a reasonable time. Growing timber is realty, and title to realty is transferred by writing, and not by parol declarations. The verbal statement of the purchasers, at the time of the removal of their mill, that they had abandoned and surrendered their interests under the lease was not effectual to revest the title in the timber. Scarborough v. Holder, 119 Ga. 256 (46 S. E. 93). Besides, such statement would not work an estoppel, when the plaintiffs had not acted thereon, or done anything to their detriment. From what passed between the -parties according to the plaintiffs version, there was nothing said which would afford an inference that the parties agreed that a reasonable time had expired.

Objection is made that the timber lease was not legally assigned to the defendant, because only one of the grantees signed the transfer. It did not concern the plaintiffs whether all of the grantees joined in an assignment of the lease to the defendant. At the trial two of the grantees testified that previously to the assignment they had sold their interest to Smith, who assigned the lease to the defendant. The three named grantees took as tenants in common, and the transfer was at least effective to convey the legal title from the party who signed it, and it was immaterial to the plaintiffs whether the two grantees who did not sign the transfer were legally bound thereby. The petition was filed within five years after the plaintiffs’ conveyance. The defendant, therefore, was not a trespasser as to the timber covered by‘the lease; and it is immaterial to the plaintiffs whether he was cutting the timber as a licensee or as a purchaser from their grantees. Morgan v. Perkins, 94 Ga. 353 (21 S. E. 574); Gaston v. Gainesville R. Co., 120 Ga. 516 (48 S. E. 188).

There was evidence submitted that the defendant was cutting timber of less size than that conveyed in the lease; as to such timber the defendant had no authority under his purchase, or as a.licensee from the grantees in the original lease. There was also evidence that this timber under ten inches at the date of the conveyance was necessary to keep up the plantation, and that the trespass was a- continuing one. The judge did not err in enjoining the defendant from cutting any timber not embraced in the original lease, but did err in enjoining him from cutting such as was so conveyed. The injunction should therefore be so modified as to embrace only the timber not ten inches or above at the date of the lease.

Judgment affirmed, with direction.

All the Justices concur.