Camp v. Horton

• Decision Date: 15 January 1909
• Citation: 63 S.E. 351,131 Ga. 793
• Parties: CAMP v. HORTON.
• Court: Georgia Supreme Court

63 S.E. 351

131 Ga. 793

CAMP v. HORTON.

Supreme Court of Georgia

January 15, 1909

Syllabus by the Court.

Where an owner of land executed an instrument to another, stating that he sold to such other person "all the timber measuring 8 inches and over" on such land, that the purchaser was to pay a certain amount in the manner specified, and was to have six months to take the timber from the land, and that the landowner was to have the tops of the trees, the purchaser acquired such an interest in the timber as authorized him to bring an action of trover against a third person who unlawfully entered upon the land, cut trees therefrom of the character described in the conveyance changed them into saw logs, removed such logs, and converted them.

[Ed Note.-For other cases, see Logs and Logging, Dec. Dig. § 35 ^[*]]

The evidence was sufficient to require the submission of the case to the jury, and the grant of a nonsuit was error.

[Ed Note.-For other cases, see Logs and Logging, Dec. Dig. § 35. ^[*]]

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by W. J. Camp against W. N. Horton. Judgment for defendant, and plaintiff brings error. Reversed.

C. E. Carpenter and Lipscomb, Willingham & Doyal, for plaintiff in error.

W. J. Nunnally, M. B. Eubanks, and F. W. Copeland, for defendant in error.

ATKINSON J.

The evidence sufficiently sustained the allegations as to the number, description, and value of the logs to authorize a submission of the case to the jury. There was no demurrer to the sufficiency of the description in the petition. If the plaintiff was entitled to the logs, and the defendant converted them, taking possession without the plaintiff's permission, no demand was necessary before bringing an action of trover. If timber is unlawfully cut from land and carried away and converted by a person not entitled thereto, trover is a proper action to recover it, if the plaintiff is one having the right to sue. The evidence is not very clear as to just when the logs were cut-whether before or after the contract between Hight and Camp was made-but it was sufficient to authorize the jury to find that they were cut and carried away after that time.

The real question in the case was whether Camp had such a right to the logs as authorized him to bring an action of trover against one who unlawfully entered upon the property, and cut and carried them away. Did Camp have the right to bring the suit? In Morgan v. Perkins, 94 Ga. 353, 21 S.E. 574, an owner of land on which there was standing timber executed to another an instrument by which he sold to the latter "all of the saw timber measuring 12 inches and over in diameter at the stump on lot of land 93 [naming the district and county], *** timber to be cut off the land by December 25, 1886." It was held that this passed title in so much of the timber described as was cut before December 25, 1886, unless this limitation was subsequently waived by the seller. In the opinion Mr. Justice Simmons said: "The timber being realty, the purchaser acquires by the written conveyance an interest in the land, subject to be divested if he fails to remove the timber within the time limited by the conveyance. This is a limitation upon the estate granted; and, if the timber is not removed within the time prescribed in the limitation, the estate terminates." In Baxter v. Mattox, 106 Ga. 344, 32 S.E. 94, the question under discussion was whether the period of limitation for cutting timber on several tracts of land embraced in a contract there under consideration began to run as to all of the lands from the time when the grantee entered on any one of the lots, or began as to each lot from the time of entry upon it. In the discussion the language was used that "it was not a conveyance of a fee-simple title to land, but a mere grant of a license to use timber growing thereon for certain purposes." But the question for decision was not whether the grantee obtained an interest in the realty or a mere license without interest, but was as to the time during which he had a right to cut the timber.

In McRae v. Stillwell, 111 Ga. 65, 36 S.E. 604, 55 L.R.A 513, an instrument in the form of a deed purported to convey to named grantees, their heirs, and assigns at a specified price per acre "all the pine timber suitable for sawmill purposes" on described lots of land. It acknowledged receipt of a specified sum, and recited that the grantor agreed that the amount left unpaid should be paid in a certain specified manner. It also purported to convey to the grantees, their heirs and assigns, "full right of way for railroads, tramroads, and wagon roads in and through the said lands for the purposes above stated, said right of way to continue as long as said mill operations may require." It was held "that the true intent and meaning of this instrument was to convey to the grantees, their heirs and assigns, all the timber suitable at the date of the instrument for the purposes indicated; but that it was incumbent on the grantees, or their successors in title, to cut and remove such timber from the...