Red Cypress Lumber Co v. Beall

• Decision Date: 23 November 1908
• Docket Number: (No. 1,107.)
• Citation: 62 S.E. 1056,5 Ga.App. 202
• Parties: RED CYPRESS LUMBER CO. et al. v. BEALL.
• Court: Georgia Court of Appeals

62 S.E. 1056

5 Ga.App. 202

RED CYPRESS LUMBER CO. et al.

v.BEALL.

(No. 1, 107.)

Court of Appeals of Georgia.

Nov. 23, 1908.

1. Loos and Logging (§ 3^*)—Damages (§ 157*)—Judgment—Right to Turpentine-Use of Timber — Actions — Nature and Form—Conformity to Pleadings—Prayer for Relief.

Where the standing pine timber on land is owned by one person and the land itself by another, the turpentine and the right to box the trees for it are appurtenances of the timber, and not of the land.

(a) Where a landowner conveys the standing timber without limitation as to the use to which it is to be apropriated, the grantee may use it for any ordinary purpose.

(b) Where the owner of land sells the standing timber thereon unconditionally save as to the time within which it is to be cut, but subsequently contracts with the vendee of the timber that he shall not work the timber for turpentine purposes and in violation of the contract he does so work it, the landowner is not entitled to sue in trespass for the value of the turpentine though he may have an action upon the contract as to any legal damages which may have been occasioned to him through the breach.

(c) Although a plaintiff may make out a case showing a right to recover general damages, yet, if it appears from the petition that he has not sued for general damages, but for special damages only, and the special damages are not recoverable under the facts shown, a verdict in his favor is unauthorized.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. § 9; Dec. Dig. § 3;* Damages, Cent. Dig. § 429; Dec. Dig. § 157.*]

2. Contracts (§ 68*) — Consideration—Compromise of Dispute.

The compromise of a bona fide dispute as to the ownership of a property right may legally constitute the consideration of a contract in which one party agrees to give up certain rights he otherwise would be entitled to enforce against the other; but the contract is not binding if the party in whose favor it is executed waives nothing, gives up no claim, and furnishes no other consideration.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 328-330; Dec. Dig. § 68.*]

(Syllabus by the Court.)

Error from City Court of Albany; D. F. Crosland, Judge.

Action by M. L. G. Beall against the Red Cypress Lumber Company and others. Judgment for plaintiff, and defendants bring error, Reversed.

Pope & Bennet, for plaintiffs in error.

Mann & Milner, for defendant in error.

POWELL, J. The view we take of the controlling, questions in the case renders it necessary to state only the following portions of the facts: Mrs. Beall owned the "Hickory Level, " place consisting of several lots of land, in Dougherty county. On January 6, 1902, she executed a warranty deed conveying to the Red Cypress Lumber Company, its successors and assigns, the timber growing upon the land comprising the "Hickory Level" place, together with the right of ingress and egress by tram roads, wagon roads, etc. The grantor reserved the right to use the timber on one of the lots (No. 292) for fence purposes, and to use for firewood on the plantation timber not suitable for mill purposes. It was stipulated that the grantees should have 10 years from the date of the deed in which to cut and remove the timber. It was, also provided that the grantees should not cut pine timber for the purpose of making rails or cordwood for market. The Red Cypress Lumber Company thereafter granted the right to cut and work the pine timber for turpentine purposes to McConnell. On November 29, 1904, the following writing was executed: "This agreement entered into this day between J. B. Beall, agent for Mrs. M. L. G. Beall, of the first part, and E. A. Hallam and J. S. Davis, receivers of the Red Cypress Lumber Company, and G. B. D. McConnell, purchaser of the turpentine privileges on the Beall Hickory Level place, of the second part. The parties of the second part agree to turpentine the following land only on said place: All timbered lands east of the road running from Ducker Station to Newton, also the two parcels of woodland situated in what is known as the new ground, west of Newton road, the same being two ponds; also the wood north of the plantation road from the quarter to Land Tarver and running north of the Clayton place line. And further gives R. P. Hall the privilege of clearing all the highlands on lot 292. [Signed] Edwin A. Hallam, Receiver. J. B. Beall, Agent. G. B. D. McConnell, Jos. S. Davis, Receiver. Witness: R. P. Hall, Clerk Superior Court, Dougherty County, Ga." J. B. Beall had a power of attorney and had full authority to act for his wife, Mrs. M. L. G. Beall. Mrs. Beall filed the present action against the Red Cypress Lumber Company and McConnell, alleging that subsequently to the execution of the foregoing agreement the defendants entered upon that portion of Hickory Level place excepted in the agreement, and damaged her in the sum of $2,000 by boxing the timber and removing $2,000 worth of turpentine. It seems that there were a number of roads running through the Hickory Level place; and there was a large amount of testimony as to which of these roads were referred to by the description given in the agreement, and as to whether any of the boxing had been done beyond the limits set...