Perkins v. Peterson
Decision Date | 28 February 1900 |
Citation | 35 S.E. 319,110 Ga. 24 |
Parties | PERKINS et al. v. PETERSON. |
Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where an owner of lands, by an instrument in writing, conveys to another "all of the timber and growing trees suitable for mill purposes, or for being manufactured into lumber, now upon all or any of the following lots, tracts, or parcels of lands" in a designated county, "known and described as follows: Round timber in the First district of said county, lots numbers" 2 and 199, and in the Sixth district lots 90 and 95; "boxed timber in the First district," lots 246, 293, 332, 333, 334; "the purchasers having the exclusive right to box the round timber, and work the same for turpentine purposes"; with the stipulation that "this lease terminates and reverts back to the owner of the land in five years from the time the timber is commenced to be cut under this lease,"--the period of limitation in such a conveyance should be computed as to all the lands embraced therein from the time the lessee begins cutting the timber upon any one of the lots, although the lots do not together form one body of land, but some of them are situated in one portion of the county and some of them in another; there being nothing in the conveyance to indicate an intention by the parties that it should be treated as a separate lease to each lot or body of land, and to fix the duration of the lease as to each lot or tract at five years from the time the lessee begins cutting timber thereon.
2. Under such a lease the "right" of the lessee "to box the round timber and work the same for turpentine purposes" ceases to exist at the expiration of five years from the time the lessee begins to cut the timber for sawmill purposes.
Error from superior court, Coffee county; J. W. Bennet, Judge.
Action by J. H. Peterson, administrator, against Perkins, Powell & Co. Judgment for plaintiff, and defendants bring error. Affirmed.
John C McDonald, Quincy & McDonald, and E. P. Padgett & Son, for plaintiffs in error.
E. G Graham and G. J. Holton & Son, for defendant in error.
1, 2. This case turns upon the proper construction of a lease contract entered into between Daniel Peterson and Charles Bewick Company on the 23d of May, 1889. By such instrument certain lots of land to which Daniel Peterson held perfect titles were leased by him to Charles Bewick Company for sawmill purposes, the lease providing that the lessee should have the right to "all of the timbers and growing trees suitable for mill purposes, or for being manufactured into lumber," then "upon all or any of the following lots, tracts, or parcels of lands situate, lying, and being in the county of Coffee, and state aforesaid, known and described as follows: Round timber in the First district of said county, lots numbers" 2 and 199, and in the Sixth district lots 90 and 95; "boxed timber in the First district of said county," lots 246, 293, 332, 333, and 334; "the purchasers having the exclusive right to box the round timber, and work the same for turpentine purposes." With reference to the duration of the lease the instrument contained the following clause: "And this lease terminates and reverts back to the owner of the land in five years from the time the timber is commenced to be cut under this lease." The lessee, Charles Bewick Company assigned and conveyed the right to cut the timber described in the lease to the Bewick Lumber Company, and assigned to Lott & McLain the right to work the timber for turpentine purposes. Lott & McLain assigned the turpentine right or license to Lott & Perkins, and the latter firm assigned the same to Perkins, Powell & Co., the defendants in this case. At the trial it was agreed that "the Bewick Lumber Co., under the lease from Daniel Peterson, entered upon lots 332, 333, and 334 in the First district of Coffee county in the fall of 1891 and the spring of 1892, and cut all of the merchantable sawmill timber growing thereon." On the 8th day of December, 1897, Perkins, Powell & Co. entered upon lots 90 and 95 in the Sixth district of Coffee county, and "commenced boxing the pine timber for turpentine purposes," claiming the right to do so under and by virtue of the lease made by Daniel Peterson to Charles Bewick Company. Daniel Peterson died in 1896, and in January, 1898, Daniel Gaskin and John H. Peterson, the administrators upon his estate, brought their equitable petition, in which they sought to enjoin Perkins, Powell & Co. "from boxing the timber upon" lots 90 and 95 in the Sixth district of Coffee county, "and from working the same for turpentine purposes," and for the recovery of whatever damages the estate which they represented had sustained by reason of the alleged trespasses which the defendants had already committed. When the case came on for final trial, Gaskin's name was stricken from the petition, he having been discharged as administrator, and the suit proceeded in the name of the remaining administrator, J. H. Peterson. After the evidence was all in, by agreement of the parties, all dispute as to the facts of the case was eliminated, and the plaintiff agreed that, if a verdict was found in his favor, the defendants should have "the right to finish working the timber on these two lots for turpentine purposes, until the end of the season beginning in 1898 and ending in 1900"; it being further agreed that the timber on the two lots, at the time it was...
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