Treisch v. Doster

• Decision Date: 09 December 1930
• Docket Number: No. 7879.,7879.
• Parties: TREISCH. v. DOSTER et al.
• Court: Georgia Supreme Court

171 Ga. 525

156 S.E. 231

TREISCH.

v.DOSTER et al.

No. 7879.

Supreme Court of Georgia.

Dec. 9, 1930.

Syllabus by the Court.

Where trees are conveyed for a period of four years, "for the purpose of boxing, working, and otherwise using said timber for turpentine purposes, " such contract is a mere license, and does not convey an estate for years; and a breach of the con tract which expressly inhibits cutting "streaks" closer than three inches, resulting in damage, will not authorize the forfeiture of the lease contract. The court properly enjoined further breach of contract, but refused to forfeit the lease.

[Ed. Note.—For other definitions of "Estate for Years" and "License, " see Words and Phrases.]

Error from Superior Court, Wilcox County; A. J. McDonald, Judge.

Petition by Elmer Treisch against P. E. Doster and others. Judgment for plaintiff for part of relief claimed, and plaintiff brings error.

Affirmed.

Lawson & Ware, of Hawklnsville, for plaintiff in error.

Hal Lawson, of Abbeville, for defendants in error.

GILBERT, J.

The plaintiff, Treisch, filed a petition against the defendants, the substance of which was that the plaintiff, owner of a tract of timber lands, executed a lease, under the terms of which he sold and conveyed, for a period of four years, to P. E. Doster, who subsequently assigned the lease to J. E. Holt, all timber upon a described tract of land "for the purpose of boxing, working, and otherwise using said timber for turpentine purposes." The lease contained the further clause: "It is agreed not to cut streaks closer than three inches." The petition alleges that the defendants have breached the last-named provision of the contract, in that they have cut streaks closer than three inches; that 2, 010 of the trees have been injured and become weakened, and 1, 300 of the trees have died because of the faulty working of the same; that the trees which have died will damage other trees in falling and in causing worms to attack standing trees; and that the defendants have also committed waste by "chipping" a large number of trees deeper than is necessary or good husbandry or ordinary discretion required. The prayers are that because of the waste the lease be forfeited; that defendants be restrained by injunction from committing further waste: that plaintiff have judgment for damages in such amount as the court may fix; and for general relief and process. The defendant demurred and answered, and the case was submitted to the judge of the superior court without the intervention of a jury. There was no express ruling on the demurrers. The exception is to the following judgments: "It is considered, ordered, and adjudged that the defendants, P. E. Doster and J. E. Holt, be and they are hereby restrained from furthercutting streaks closer than three inches, as provided in said contract. The court is of the opinion to restrain the defendants from working the trees where the streaks have already been made closer than three inches would be declaring a forfeiture as to said trees on...