Gray Lumber Co. v. Harris
Decision Date | 19 July 1910 |
Docket Number | 2,360. |
Citation | 68 S.E. 749,8 Ga.App. 70 |
Parties | GRAY LUMBER CO. v. HARRIS et al. |
Court | Georgia Court of Appeals |
Syllabus by the Court.
Where on reviewing a judgment of nonsuit, the Supreme Court has rendered a decision which could not have been correctly rendered, as rendered, if a certain insistence of one of the parties had been considered well taken, it will, in future trials of the case, be construed as a decision against that insistence, although the matter is not mentioned in the course of the opinion.
Where the vendor of standing timber sells it to another, and in the conveyance makes a stipulation by which the right to cut the timber is to terminate upon the expiration of three years from the time the vendee or his assign begins to cut it, the three-year period will not be started to running by the act of an outsider in entering upon the lands and cutting a portion of the timber without the consent of the vendee or his assign; aliter, if the person doing the cutting has authority to do so from the then holder of the title to the timber under the conveyance mentioned.
(a) In a case like that just mentioned, if the person who wrongfully did the cutting should, more than three years thereafter purchase the timber rights from the person who owned them at the time of the unauthorized cutting, his prior trespass, in having entered upon the timber and cut a portion of it without authority, would not operate to forfeit the title to the timber, on the theory that the period of three years had expired since he (the person thus acquiring the title) had commenced to cut it.
Though standing timber is realty, and a conveyance of standing timber should be in writing, yet where such a conveyance contains a clause whereby the vendee's right to cut the timber is to expire within a certain time after the happening of a designated act, the vendor may orally waive his right to insist upon counting the time of this limitation as running because of the happening of an act which, but for his waiver might be considered as the starting point.
The plaintiff in trespass recovers on the strength of his own title, and not on the weakness of the defendant's. The alleged error in respect to the admission of testimony in regard to the asserted title of the defendant in this case was immaterial.
(Additional Syllabus by Editorial Staff.)
"Waiver" is a voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the person waiving would have enjoyed.
Error from City Court of Douglas; E. Wall, Judge.
Action by the Gray Lumber Company against E. G. Harris and others. Judgment of nonsuit, and plaintiff brings error. Reversed.
Lankford & Dickerson, for plaintiff in error.
Lane & Park and J. W. Quincey, for defendants in error.
1. We consider that the decision of the Supreme Court has settled (at least so far as the present case is concerned) that the limitation clause of the timber conveyance from John Vickers, under which the plaintiff claimed, was such as to cause the estate held by the grantees in the timber to terminate within three years from the time that the grantees in that lease or any other person authorized by them began to cut the timber. If the point that the limitation clause in the lease was not a limitation upon the title--but merely upon the right of ingress and egress (i. e., was a covenant and not a condition), were well taken, it would have been a sufficient reason for the Supreme Court to have reversed the former judgment of nonsuit. Only upon the theory that the lease had terminated by the fact of the cutting and the running of the three years thereafter can the affirmance of the judgment of nonsuit be justified, under the facts presented by the record in the case then before the Supreme Court; and, therefore, while the court did not in express language refer to this feature of the case, the judgment rendered must be taken as having by necessary implication decided this branch of the plaintiff's case adversely to it.
2. The evidence was substantially different on the trial under review from what it was on the former trial, as appears from an examination of the facts set out in the course of the opinion of the Supreme Court and a comparison of them with the evidence in the present record. From the evidence on the former trial it appeared plainly that when the Gray Lumber Company, in 1897, did the cutting upon the timber in dispute it did so intentionally, and with the consent of Covington, who was then the holder of the legal title to the timber under the first Vickers lease. In the present record the defendants, in order to establish this element of the case (that the cutting was done intentionally and by the consent, actual or implied, of Covington), offered two witnesses who testified as to the declarations of one H. L. Gray, an employé of the plaintiff corporation, alleged to have been made just before the timber was cut, that they had bought this timber from Covington, and were going to cut it. However, Mr. Gray, as a witness on the trial, denied making any such statement. The woodsman of the Gray Lumber Company was introduced as a witness for the defendants, and testified that at the time this cutting in question was done he understood that the Gray Lumber Company had bought the Covington timber. He testified to some conversation had with one of the Messrs. Gray on the subject, but admitted on cross-examination that he did not know whether the Gray Lumber Company did at that time own the Covington timber or not; and that he did not remember whether Mr. Gray told him that he had bought the timber or merely that he had bargained for it, or merely had an option on it. He further testified that at the time he did this cutting he was under the impression that the Gray Lumber Company had bought all the timber owned by Covington, but later found that they had bought only part of it. Fairly construed, the testimony of this witness is susceptible of no other construction than that at the time this cutting was done Mr. Gray had said something to him about either having bought the...
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