McRae v. Smith , 164 Ga. 23 ( 1927 )

Hines, J.

1. The subject-matter of the grant is “all the sweet red gum timber” upon the described tract of land, and includes all trees standing on the land that were suitable, at the time of the grant, for use in the manufacture of lumber or material for building, manufacturing, and kindred purposes, but does not embrace sprouts and saplings. Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 113 (90 S. E. 960).

2. A conveyance in 1917 of “all sweet red gum timber” included only those trees which were then suitable for the above purposes, and not those which by growth subsequently became suitable for the above purposes. Allison v. Wall, 121 Ga. 822 (6) (49 S. E. 831).

3. Where the landowner conveys “all the sweet red gum timber” on a described tract of land, without any limitation as to the use to which it is to be appropriated, the grantee may use it for any purpose he may see fit. Gray Lumber Co. v. Gaskin, 122 Ga. 342 (50 S. E. 164); Shaw v. Fender, 138 Ga. 48 (74 S. E. 792); Red Cypress Lumber Co. v. Beall, 5 Ga. App. 202 (62 S. E. 1056).

4. Equity will not enjoin the enforcement of an unambiguous contract for the sale of “all the sweet red gum timber” upon a described tract of land, on the ground that the sale of the timber was for a specific purpose, and that an assignee of the purchaser was cutting and removing it to be used for another purpose, without first reforming the instrument under proper pleadings and evidence. ' Shaw v. Fender, supra.

5. The cutting and removal of timber from forest lands is a destructive trespass, and one liable in its nature to cause irreparable damage to the owner of the timber. Where, under the grant of “all the sweet red gum timber” on a described tract of land, an assignee of the purchaser is cutting and removing saplings and trees which do not come within the designation of timber, as used in such grant, an injunction will issue to restrain such a trespass, where it is a continuing one which will result in denuding the land of such saplings and trees and destroying the value of the freehold. Camp v. Dixon, 112 Ga. 872 (38 S. E. 71, 52 L. R. A. 755) ; Gray Lumber Co. v. Gaskin, supra; Moore v. Daugherty, 146 Ga. 176 (2) (91 S. E. 14).

6. Where a petition was filed for the purpose of enjoining the cutting and removal of timber to which the defendant was not entitled under the contract of purchase between him and the plaintiff, and where on interlocutory hearing it was shown that the trespass was continuing and would denude the forest lands of saplings and trees which would in the future be valuable as timber, and was thus destroying the value of the freehold, if the presiding judge reached the conclusion that the plaintiff had established her right to an injunction, it was error to allow the injunction or restraining order to be dissolved upon the giving of a bond by the defendant to answer to any recovery of damages which the plaintiff may obtain on the final trial. Wethington v. Baxter, 124 Ga. 1024 (53 S. E. 505); Hart v. Lewis, 126 Ga. 439 (55 S. E. 189); Stewart v. Davis-Sears Lumber Co., 132 Ga. 205 (63 S. E. 817) ; Gray v. Guthrie, 134 Ga. 273 (67 S. E. 799) ; Baggerly v. Bainbridge State Bank, 160 Ga. 556 (4), 563 (128 S. E. 766); Durrence v. Groover, 160 Ga. 680, 682 (129 S. E. 29).

7. In the cross-bill of exceptions error is assigned on an alleged judgment of the trial judge overruling the demui’rer of the defendant to the petition. It is recited that “The general demurrer was likewise considered by the court and overruled, but the court inadvertently failed to reduce to writing the judgment overruling the general demurrer.” It does not appear that any judgment in writing was taken, overruling the demurrer to the petition. What the judge orally declares is no judgment until it has been put in writing and entered as such. Freeman v. Brown, 115 Ga. 23, 27 (41 S. E. 385) ; Alexander v. Chipstead, 152 Ga. 851, 861 (111 S. E. 552) ; Conley v. Pope, 161 Ga. 462 (3) (131 S. E. 168). As no judgment in writing overruling the demurrer to the petition was entered, the assignment of error thereon in the cross-bill of exceptions presents no question for decision by this court.

8. The trial judge passed an order temporarily restraining and enjoining the defendant from cutting, felling, and removing timber from the premises of the plaintiff: provided, however, should the defendant file with the clerk of the court a good bond to be approved by the clerk, payable to the plaintiff, and conditioned to pay her any judgment that might be rendered, in her favor in this case, then in such event the defendant should be allowed and permitted to cut, fell, and remove any and all of the timber on said land that will measure not less than fourteen inches in diameter three feet from the ground. The defendant does not except to the grant of this injunction, but does except to so much of said judgment as provided for the giving of said bond. The bill of exceptions recites that counsel for defendant stated that if the defendant was so required, he would be willing to give such bond. Held:

Nos. 5577, 5603. March 17, 1927.

(а) As counsel stated on the hearing that his client was willing to give this bond, if required, he can not now complain that the judge permitted him to do so.

(б) But as we have held, on the main bill of exceptions, that the court erred, as against the plaintiff, in permitting the defendant to give this bond, this requirement does not requite a reversal of the judgment under the cross-bill, even if the defendant were in position to except to the portion of the judgment providing for the giving of this bond.

Appeal and Error, 3 C. J. p. 602, n. 40; p. 1365, n. 85; 4 C. J. p. 717, n. 28, 29; p. 718, n. 33; p. 916, n. 31.

Injunctions, 32 C. J. p. 142, n. 41; p. 428, n. 82, 83.

Judgments, 34 C. J. p. 52, n. 42; p. 54, n. 48.

Logs and Logging, 38 C. J. p. 159, n. 62; p. 162, n. 90, 1; p. 184, n. 49, 53 New.

Judgment reversed in part on the main Mil of exceptions; judgment affirmed on the cross-MU.

All the Justices concur. M. B. Calhoun and L. C. Underwood, for plaintiff. J. Wade Johnson, for defendant.