Goette v. Lane

• Decision Date: 13 July 1900
• Citation: 36 S.E. 758,111 Ga. 400
• Parties: GOETTE v. LANE.
• Court: Georgia Supreme Court

36 S.E. 758

111 Ga. 400

GOETTE v. LANE.

Supreme Court of Georgia

July 13, 1900

Syllabus by the Court.

1. Relatively to the character and extent of the estate conveyed in the timber described in the conveyance involved in the present case, and to the length of time within which that estate would be determined, this case falls within the ruling made in the case of McRae v. Still-well (decided at the present term) 36 S.E. 604.

2. In as much as the question of what would be a reasonable time for exercising the privileges granted in the deed involved in the present case is one of fact, to be determined in the light of all the facts and circumstances surrounding the transaction, and inasmuch as the same would necessarily be widely variant in different cases, it cannot be determined with reference to any local custom or usage, unless such custom or usage was so general and universal as to have become necessarily, by implication, a part of the contract which would not arise unless the custom was one which could be reasonably applied to the particular transaction under investigation. (a) The charge of the court relating to the subject of custom was not warranted by the facts in the present case.

Error from superior court, Emanuel county; B. D. Evans, Judge.

Action by E. W. Lane against J. G. Goette. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he brings error. Reversed.

A. C Wright, for plaintiff in error.

Henry R. Daniel, for defendant in error.

COBB J.

Lane sued Goette in an action of trespass, alleging that the defendant had entered upon the premises of the plaintiff, and taken and carried away therefrom timber belonging to the plaintiff. The jury returned a verdict in favor of the plaintiff, and the defendant's motion for a new trial having been overruled, the case is here upon a bill of exceptions sued out by him, assigning error upon the judgment of the court refusing to grant him a new trial.

1. At the trial it appeared that the plaintiff had conveyed to one Preston "all the pine timber suitable for sawmill purposes" on various tracts of land, including the tract described in the petition, which was one containing, 1,841 acres. The grantee and his heirs and assigns were to have the right to enter upon the land described "for the purpose of boxing the said timber for turpentine purposes, and of cutting, manufacturing, and hauling and taking away said timber and turpentine, or such portion of it as he may wish at any time in reason, and also the exclusive right and privilege of having sites for sawmills and turpentine stills" on the lands, as well as the right to build and operate roads, tram roads, and railroads for the purpose of hauling the timber, logs, lumber, merchandise, and all other freight, so long as the grantee, his heirs and assigns, might see fit to use or occupy the same, with the privilege of removing all such property from the land, as well as the right to the quiet and peaceable possession of the lands at any and all times for the purpose of turpentining, cutting manufacturing, hauling, and taking away the timber and trees. In the warranty clause of the deed it was stipulated that the plaintiff would forever warrant and defend to the grantee, his heirs and assigns, "the timber and turpentine privileges, and all other of said rights and privileges, above mentioned." No definite time was specified in the deed within...