Neal Lumber & Mfg. Co. v. O'Neal
| Decision Date | 17 November 1932 |
| Docket Number | 8933. |
| Citation | 166 S.E. 647,175 Ga. 883 |
| Parties | NEAL LUMBER & MANUFACTURING CO. et al. v. O'NEAL, for Use of SEALY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Petition to enjoin lessee's cutting of timber not conveyed by leases and for accrued damage held sufficient (Civ Code 1910, §§ 5490, 5493).
Petition brought by owner of land purchased subject to timber leases held by defendant, alleged that plaintiff and defendant claimed under a common source of title; that defendant was cutting and removing timber not conveyed by its leases and was blocking a roadway made by plaintiff in the exercise of his right of possession; that before the suit was filed plaintiff sustained damage in a stated sum by reason of the alleged acts of trespass; and that he would suffer irreparable loss unless defendant were enjoined.
Lease of "all *** trees and timber of every kind *** growing or being" on land authorized manufacturer lessee to remove only trees suitable for timber on date of instrument.
1. In a suit by an owner of land purchased by the plaintiff subject to timber leases held by the defendant, where it is claimed that the plaintiff and the defendant claim under a common source of title and that the defendant is cutting and removing timber not conveyed by its leases and is blocking a roadway made by the plaintiff in the exercise of his right of possession, and that before the suit was filed the plaintiff sustained damage in a stated sum by reason of the alleged acts of trespass, and that he will suffer irreparable loss unless the defendant is enjoined, and where the plaintiff prays for injunction and for a money judgment for the accrued damage, the petition is not fatally defective as failing to set forth a cause of action, and is therefore not subject to general demurrer.
2. Where an owner of land upon which trees and timber were situated entered into a contract with another who desired to cut, remove, and use the same for manufacturing and construction purposes, and the instrument acknowledged receipt of a stated sum of money in consideration of which the owner granted, bargained, sold, and conveyed unto the other party "all of the trees and timber of every kind and description growing or being" on the land, and further granted and conveyed to the purchaser "full license and privilege at any and all times (from the date of the lease, June 22, 1931) until March 18, 1954, to cut and remove any and all trees and timber growing or being on the said lands," the purchaser acquired the right to cut and remove only such trees as were suitable for timber on the date of the instrument, and was not entitled to cut and remove other trees which did not become suitable for such use until some time later. The trial judge properly construed the contract in question, and did not err in granting the interlocutory injunction.
Error from Superior Court, Seminole County; C. W. Worrill, Judge.
Suit by B. M. O'Neal, for the use of J. R. Sealy, against the Neal Lumber & Manufacturing Company and others. To review the judgment, defendants bring error.
Affirmed.
J. T Goree, E. C. Smith, Jr., and Dixie Drake, all of Donalsonville, for plaintiffs in error.
W. V. Custer & Son, of Bainbridge, for defendant in error.
This was a suit by B. M. O'Neal, for the use of J. R. Sealy, against Neal Lumber & Manufacturing Company and others, to enjoin the cutting and removal of timber situated upon land, the legal title of which was in O'Neal and the equitable title in Sealy as the plaintiff's vendee. The petition sought also to enjoin the commission of other alleged acts of trespass upon the land in question. The court overruled a general demurrer to the petition, and granted an interlocutory injunction, and the defendants excepted. Neal Lumber & Manufacturing Company was the real party defendant, and no reference to other parties defendant is necessary. The petition shows that the plaintiff holds the title to the land by mesne conveyances from Mathew Alday and Henrietta Alday, and that the defendant claims the title to the timber growing upon the land by grants from the same parties. The petition sets forth a copy of a contract signed by Henrietta Alday, which in turn refers to a previous "lease and timber" deed signed by Mathew Alday. These instruments purport to convey the trees and timber upon the land in question for certain periods respectively, and are alleged to constitute the bases of the defendant's claim. The petition contains the following additional allegations: The defendant is claiming the right to cut and remove trees and timber to which it has no right under either of the Alday contracts and is actually cutting and removing second-growth hickory to which it has no title, and is threatening to cut and remove "any and all trees now growing upon the land." A private road has been made through the land by Sealy for his "convenience and enjoyment," and the defendant has "cut down trees across said roadway, blocking the same and preventing the use thereof, in violation of the terms of its said lease." The plaintiff's usee has already been damaged in the sum of $700, and irreparable loss and damage will be sustained by him unless an injunction should be granted. The prayers are for process and injunction, and for a judgment for the damage alleged to have been sustained.
The exhibit attached to the petition shows a contract made between Henrietta Alday and W. T. Neal, trustee, a predecessor in title of the defendant. The contract recited a consideration of $750, for which Henrietta Alday extended "to the 18th day of March, 1954, that certain lease and timber deed executed by Mathew Alday on to wit, March 18th, 1909, to the Southern Hardwood Manufacturing Co., *** said lease and timber deed describing and embracing" the land referred to in the plaintiff's petition, and "the said W. T. Neal, trustee, being the assignee" of Southern Hardwood Manufacturing Company. It appears that the "lease and timber deed" made by Mathew Alday originally covered a period of 25 years, and, except for the extension agreement, would expire on March 18, 1934. The instrument signed by Henrietta Alday also stipulated that for the same consideration she did "further grant, bargain, sell, and convey unto the said W. T. Neal, trustee, his successors and assigns, all of the trees and timber of every kind and description growing or being on the above-described lands, and grant and convey unto the said W. T. Neal, trustee, his successors and assigns, full license and privilege at any and all times, until March 18th, 1954, to cut and remove any and all trees and timber growing or being on the said lands; to enter upon and pass over said lands with men, teams, railroad, carts, wagons, or other vehicles, locomotive, skidders, or tractors, for the purpose of cutting, moving, or manufacturing the said trees and timber on any part thereof, or for the purpose of cutting, moving, or manufacturing trees and timber or wood products cut from other lands,"
The petition shows that the plaintiff acquired title to the land after the execution and record of each of the timber leases or deeds, and that the defendant is now the owner and holder of each of these instruments and of all rights therein conveyed. The petition does not set forth a copy of the lease executed by Mathew Alday, and disclosed nothing as to its contents except what was stated in the instrument signed by Henrietta Alday; but the defendant in its answer set forth a copy of the former contract, from which it appears that, in consideration of the sum of $4,750, Mathew Alday, on December 1, 1909, did "grant, bargain, demise, sell, and lease" to Southern Hardwood Manufacturing Company, its successors and assigns, "all and singular the trees and timber, of whatever kind or character, standing or lying upon the ground," of 24 stated lots and fractional lots of land in Decatur county, Ga.; the party of the second part "to have free use and enjoyment of all of said trees and timber on said land for and during a term of 25 years from the 18th day of March, 1909, with the unrestricted rights and privileges of going upon the lands for the purpose of taking and carrying off said trees and timber at any and all times during said term," except that certain "las-tmentioned lots (were) not to be cut until ten years from date." The defendant denied that it was cutting or had sought to cut any of the timber not embraced in the Alday leases, but admitted that it claimed the right and intended to cut and remove not only trees which were useful as timber on the dates of the leases respectively, but also any and all trees which may have or will become timber by growth since the execution of these instruments, contending that it had the right to do so under a proper construction of the leases. At the hearing for injunction it was stipulated that the plaintiff's title was subject to such rights as were conveyed by the leases, and that "the sole issue for determination, *** so far as the facts are concerned, is the right of Neal Lumber and Manufacturing Company to the trees and timber claimed by it under said leases," which are now held and owned by this company. The defendant offered oral...
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