Moore v. Vickers

• Decision Date: 28 July 1906
• Citation: 54 S.E. 814,126 Ga. 42
• Parties: MOORE. v. VICKERS.
• Court: Georgia Supreme Court

54 S.E. 814

126 Ga. 42

MOORE.

v.VICKERS.

Supreme Court of Georgia.

July 28, 1906.

1. Property—Standing Timber.

Standing timber is realty.

[Ed. Note.—For cases in point, see vol. 40. Cent. Dig. Property, § 4.]

2. Trespass—Title to Maintain.

Before one out of possession can maintain an action of trespass for cutting and removing standing timber, he must show himself to be the true owner.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trespass, §§ 18-22, 29.]

3. Same—Evidence of Ownership.

Ownership of the timber by the plaintiff is not established by proof that he and the defendant's grantor were asserting independent and conflicting titles to the same land, and that a compromise was effected whereby the plaintiff conveyed to the defendant's grantor the land, reserving to himself the timber thereon.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trespass, §§ 19, 124.]

(Syllabus by the Court.)

Error from City Court of Douglas County; Levi O'Steen, Judge.

Action by E. H. Moore against Katie Vickers. Judgment for defendant, and plaintiff brings error. Affirmed.

Quincey & McDonald and Hal. Lawson, for plaintiff in error.

L. Kennedy and Dart & Roan, for defendant in error.

EVANS, J. This was an action of trespass to recover damages for the cutting and removal of timber from a certain lot of land. It appears from the evidence that the plaintiff, E. H. Moore, and one Alison jointly claimed title to the lot of land, and that their claim of title was disputed by Archibald McMillan, the grantor of the defendant In 1892 Moore and Alison on the one part, and McMillan on the other part, entered into an agreement that they would settle the dispute of title by McMillan taking the land and releasing his claim to the timber thereon, which was to belong exclusively to the other claimants. In pursuance of this agreement, the plaintiff and Alison made a conveyance of the lot to McMillan, the deed containing this recital: "But we, the said E. H. Moore and J. R. Alison, reserve all the timber on said lot of land unto ourselves." Subsequently, Alison conveyed his interest in the timber to the plaintiff, and McMillan made to the defendant a conveyance to the entire tract of land, without any reservation of timber. On the trial of the case no possession was shown, and the plaintiff relied on the foregoing conveyances and the facts attending their execution as proof of title.

Evidence was introduced to show that the cutting of the timber was under authority of the defendant, and its value was shown. The court granted a nonsuit; and the controlling question presented is whether the plaintiff established such title as would permit a recovery by him for the alleged trespass.

The plaintiff in his petition does not allege any claim of title to the land, but declares himself to be the owner of the timber. He charges that the defendant "did enter on the said timber and did cut and remove a part of said timber from the said lot of land." A claim of ownership to growing timber is a claim of ownership to an interest in land. Standing timber is realty. Balkcom v. Empire Lumber Co., 91 Ga. 651, 17 S. E. 1020, 44 Am. St. Rep. 58. His complaint, therefore, is that the defendant has trespassed on his interest in the described realty, and he seeks to recover for the alleged trespass. At common law the true owner of land, if out of possession, could not recover in trespass. Our Code (Civ. Code 1895, § 3877) changed the rule of the common law on this subject, and now the true owner may maintain an action of trespass, though not in possession at the time the trespass was committed. But to bring himself within the statute, h...