Shaw v. Fender , 138 Ga. 48 ( 1912 )

Evans, P. J.

(After stating the foregoing facts.)

1. An owner of land may grant an estate in trees growing upon his land. He may by apt words create an absolute estate in them (North Georgia Co. v. Bebee, 128 Ga. 563, 57 S. E. 873), or he may grant an estate terminable upon the grantee’s failure to cut and remove the timber within a limited time. Morgan v. Perkins, 94 Ga. 353 (21 S. E. 574); Shippen v. Gates, 136 Ga. 37 (70 S. E. 672). But whether the grant be of an absolute or a defeasible estate in growing timber, the estate conveyed is an interest in realty, and includes all the appurtenances of the grant. The title to the timber passes by the grant, and the grantee may put the timber to any use he sees proper. Even in the case of a grant of “all and singular the-timber for turpentine and sawmill purposes, growing on” described land, it was held that the purchaser could use it for cross-ties or firewood or for any other purpose which he saw proper. Gray Lumber Co. v. Gaskins, 122 Ga. 342 (50 S. E. 164). The right of an owner of property to put it to any lawful use is one of the incidents of the ownership of it. A vendor of timber in ohe sale of it may limit the use to which the vendee may put it while it is on his land; in such a case the limitation is upon the estate granted. With these principles in mind we will examine the deed sub judice, with a view to ascertaining whether the grantees were restricted in using the pine timber conveyed for only sawmill purposes. In the first place the deed conveys “all and singular the timber” on described land, except that “timber is not to be cut down less than 14 inches at stump,” to the grantees and their assigns. We think it clear, both from the phraseology of the exception and its insertion in the part of the. deed descriptive of the property conveyed between the granting and tenendum clauses, that the exception operates only to define the property sold, and is neither a limitation on the estate conveyed nor a restriction upon the use to which the timber is to be put by the grantees. The grantor sold and conveyed all the timber of the size of 14 inches and upwards at the stump. The deed contains several covenants by the grantor: one is to the effect that the grantees and their assigns are to have the free, full, and undisturbed use and enjoyment of the timber, including the right to cut and remove the timber from the land within ten years, with the right to construct tramways, roads, tenant-houses, sawmill, and other -temporary structures, subject to removal by the grantees before the expiration of the time stipulated. In this covenant the grantor recognizes that his grant does not limit the use of the timber for sawmill purposes, but is more extensive; for he expressly covenants that the grantees and their assigns shall have the full and undisturbed use and enjoyment of the timber, including the right to cut and remove, etc. The timber was granted, and this covenant relates to the specification of certain rights conferred upon the grantees in putting it to a particular use. And the covenant following also relates to the same particular use. The warranty of title, which is “to the said timber and the free and uninterrupted use and enjoyment of said timber, including the use of the land for timber purposes during the time aforesaid,” indicates that the sale was of the timber without any restriction upon the use of it by the grantee or his assigns. We are, therefore, of the opinion that the grantees took an estate in 'the timber of the specified dimension, determinable upon their failure to cut and remove it within ten years, and during that time the grantees had the right to cut and box the pine trees with the object of extracting the gum to be manufactured into turpentine.

2. It is alleged in the petition that the expression in the deed, “but. timber is not to be cut down less than 14 inches at stump,” is ambiguous, and that the true intention and purpose of the expression was to mean “but timber is not to be cut down less than 14 inches at the stump two feet from the ground, for sawmill purposes only,” and that the ambiguity exists by reason of an accident or mistake in the drafting of the deed. The defendants demurred specially to this paragraph of the petition, and moved to strike it, because it was an attempt to engraft by parol a restriction upon the estate granted. The grantee of the deed is not a party to the cause, 'and there is no prayer for the reformation of the deed. It may be shown by parol testimony what is the usual stump height for cutting timber. When the parties omitted to state the stumpage height in the deed, it is to be understood that they contracted with reference to the usual and customary rule in that particular. But an attempt to limit the use of the property convej^ed by parol proof involves an entirely distinct proposition. As the deed is written it is unambiguous, and equity will not enjoin the enforcement of an unambiguous contract on the ground that by mistake of the scrivener it was ;not made to express the real agreement between the parties, without first reforming the instrument under appropriate pleadings. Perkins Lumber Co. v. Wilkinson, 117 Ga. 394 (43 S. E. 696). The special demurrer to this paragraph was well taken.

3. But it was error to strike the petition on general demurrer, as it was distinctly alleged that the defendants had cut for turpentine use many trees of less size- than 14 inches at the usual stump height, that they were “working” these undersized trees, and that the acts of the defendants in this respect, for the reasons stated, would result in irreparable injury, and were recurring trespasses. The plaintiff is entitled to recover of the defendants damages for the injury occasioned by the cutting of the undersized trees, and to enjoin them from repeating the trespass upon them. Gray Lumber Co. v. Gaskins, supra.

4. In their answer the defendants aver, that they claim title to the turpentine privileges in the timber 14 inches in diameter and upwards at the stump, and the right to use and work the boxes therein under the deed from the plaintiff to the Massee '& Eelton Lumber Company, and under and by virtue of a contract of sale between the Massee & Felton Lumber Company and the defendant Fender; that while the Massee & Felton Lumber Company never in fact exécuted and delivered to Fender a written lease in accordance with their contract, they accepted the purchase priee for the turpentine privileges, and, having received the same, consented for the defendant Fender to take possession of the timber for the purpose of boxing and using it for turpentine purposes, and as a result thereof a perfect and complete equitable title to the timber for turpentine purposes, with the right to use and work the same, was vested in him. Other defensive matter was pleaded. The plaintiff demurred specially and generally to the answer, and the court sustained the demurrer “upon the ground that the answer of the defendant shows that the defendant has no recorded lease to the interest involved, and has no written contract from any one who does hold such lease, authorizing defendants to use the timber.” The-cross-bill of exceptions complains of this ruling. The court predicated his ruling upon the Penal Code § 226, which declares it shall be a misdemeanor for any person to enter or cut or remove from any uninelosed land any timber, unless such person shall, before so doing, have on record in the county where the land lies a deed of conveyance to the same, prima facie showing title to such land, or shall have a written contract from such person, who has a recorded deed, prima facie showing title in him. This code section has no application to the present case. It simply denounces as a misdemeanor the act declared in the statute. It confers no right of action upon one who has no title to the timber, to recover from a violator of the statute-the value of the timber cut or removed. Indeed the statute relates to the cutting and removal of timber, and is of doubful application to turpentine operations. But even if turpentine operations be comprehended, the plaintiff must show title to the timber before he can recover for any trespass to the same or its appurtenances. As the title to. the timber passed out of the plaintiff, by virtue of his deed to the Massee & Felton Lumber Company, he has no interest in the timber to protect. The defendants cut and boxed the timber with the consent of its owner, and were not trespassers. Gaston v. G. & D. Ry. Co., 120 Ga. 516 (48 S. E. 188). Besides, the defendant has a perfect equitable title as against the Massee & Felton Lumber Company, so far as the right to work the timber for turpentine is concerned. Civil Code (1910), § 4634. And as the'plaintiff is estopped by his grant from claiming the timber from his grantee, likewise is he estopped from asserting title to the timber or its .appurtenances against his grantee’s vendee in possession with full purchase-price paid. It was error for the court to sustain the demurrer on the ground stated in the judgment.

Judgment reversed on both bills of exceptions.

All the Justices concur.