US v. 1,070 ACRES OF LAND, IN HOUSTON COUNTY, GA.

• Decision Date: 25 October 1943
• Docket Number: Civil Action No. 179.
• Parties: UNITED STATES v. 1,070 ACRES OF LAND, IN HOUSTON COUNTY, GA., et al. (BROWN BROS., Interveners).
• Court: U.S. District Court — Middle District of Georgia

52 F. Supp. 378

UNITED STATES v. 1,070 ACRES OF LAND, IN HOUSTON COUNTY, GA., et al. (BROWN BROS., Interveners).

Civil Action No. 179.

District Court, M. D. Georgia, Macon Division.

October 25, 1943.

T. Hoyt Davis, U. S. Atty., of Macon, Ga., H. G. Rawls, Sp. Atty., Dept. of Justice, of Albany, Ga., Roger P. Marquis and Irwin D. Shapiro, Attys., Dept. of Justice, both of Washington, D. C., and Henry S. Barnes and Chas. W. Walker, Asst. U. S. Attys., both of Macon, Ga., for petitioner.

Carlisle & Bootle, of Macon, Ga. (Wm. A. Bootle, of Macon, Ga., of counsel), for defendant Brown Bros.

DEAVER, District Judge.

The United States filed a petition to condemn the Newberry tract of land, and took possession under the Second War Powers Act, 50 U.S.C.A. Appendix § 631 et seq.

Brown Bros. came into the case by what is called an intervention and set up a contract with Newberry and allege that under said contract they own such an interest as should be paid for in the condemnation proceeding.

The contract purports to convey all the sand and gravel suitable for mining and marketing purposes, located on a certain farm and adjacent to a pond on said farm. The purchasers agree to pay eight cents per cubic yard for the use and privilege of said sand and gravel, and agree to pay said amount for every cubic yard mined and removed from said premises, and agree to make payments once a month for all sand and gravel mined and removed from the premises during the preceding month. Upon failure of purchasers to make said payments, the seller has the option to cancel the contract. The purchasers are to have free use and enjoyment of said sand and gravel for the purposes aforesaid for three years. They are to have the right of ingress and egress and the right to erect buildings and install machinery, all of which are to remain personalty and be removable by the purchasers. They are also to have certain water rights. They have the option to cancel the contract by giving 30 days written notice.

1. The contract is void for failure to describe any particular property. The description, in substance, is sand located on a certain farm adjacent to a pond on said farm. Sand "adjacent" to a pond is too indefinite.

2. Even if the description were sufficient, the contract amounts only to an executory sale of personalty, coupled with an incidental license to dig and remove the sand. Pope v. Barnett, 45 Ga.App. 59, 163 S.E. 517; Lovelace-Eubanks Lumber Co., 38 Ga.App. 223, 143 S.E. 434; Clarke Brothers v. McNatt, 132 Ga. 610, 64 S.E. 795, 26 L.R.A.,N.S., 585; Graham v. West, 126 Ga. 624, 55 S.E. 931.

The subject matter of the sale was sand. It was to be paid for and title was to pass after its removal. The license to enter etc. was not a part of the subject matter of sale and was not the thing that was to be paid for. In Neal Lumber & Mfg. Co. v. O'Neal, 175 Ga. 883, 890, 166 S.E. 647, the contract conveyed an estate in trees and timber with full license to cut and remove, but the court said the license did not add to the subject-matter of the conveyance. In fact, such license would exist even if it was not mentioned in the contract. In Shippen Bros. Lbr. Co. v. Gates, 136 Ga. 37, 41, 70 S.E. 672, 674, the court said: "The deed did not in express terms mention the right to construct roads and destroy timber for the purpose of ingress and egress in removing the timber; but in so far as these things were necessary in order to enable the grantee to cut and remove the trees, the right to do them passed under the deed as an incident to the right to the trees".

When the right to the subject matter of the conveyance is terminated, the license to enter is gone with it. See McRae v. Stillwell, Millen & Co., 111 Ga. 65, 70, 36 S.E. 604, 55 L.R.A. 513.

3. When the United States in the exercise of a legal right takes the subject matter of an executory sale, the contract is at an end. Tipler, etc., Co. v. Forrest, etc., Co., 148 Ark. 132, 229 S.W. 17; Roxford Knitting Co. v. Moore & Tierney, Inc., 2 Cir., 265 F. 177, 11 A.L.R. 1415; Corona Coal Co. v. Davis, 5 Cir., 20 F.2d 738; Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773; Mullen Benevolent Corp. v. United States, 290 U.S. 89, 94, 54 S.Ct. 38, 78 L.Ed. 192.

The government did not take over the contract in this case for the purpose of substituting itself for Newberry and requiring Brown Bros. to perform the contract for the benefit of the government. It follows that when the government took the property title to which was in Newberry, performance by Newberry was excused and Brown Bros. had nothing to be paid for in the condemnation proceeding.

4. Whether, after the property was taken and the contract was ended, the government by any authorized agent made any promises or conducted itself in any way which would create a legal liability to Brown Bros., it is not necessary to decide because, even so, such liability could not be adjudicated in the condemnation proceeding. See Bothwell v. United States, 254 U.S. 231, 41 S.Ct. 74, 65 L.Ed. 238; Kanakanui v. United States, 9 Cir., 244 F. 923, 926; United States v. Boston, C. C. & N. Y. Canal Co., 1 Cir., 271 F. 877, 899; United States v. Shingle, 9 Cir., 91 F.2d 85, 89; John Ii Estate, Ltd., 9 Cir., 91 F.2d 93, 94; Carlisle v. Cooper, 2 Cir., 64 F. 472; Danforth v. United States, 308 U.S. 271, 282, 60 S.Ct. 231, 84 L.Ed. 240; United States v. Nipissing Mines Co., 2 Cir., 206 F. 431; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058.

5. The above disposes of the case but it might be worth while to discuss some of the numerous authorities dealing with somewhat similar contracts.

The right to profits, denominated profits a prendre, consists of a right to take a part of the soil or product of the land of another in which there is supposable value; the right of taking soil, gravel, minerals and the like from the land of another. It must be created by grant and not by parol. The right is distinguishable from a license, with respect to real property, and where an instrument grants a right to take soil or other product of the land, even though it is called a license, it constitutes a profit a prendre. 28 C.J.S., Easements, § 3, pages 631, 633.

In case of a right to take soil or timber as a profit a prendre, it is the right to take which is bought and sold. The consideration is paid for the right to take. It is immaterial how much or how little is taken, if within the limits of the contract, and it is immaterial what disposition is made of the product after it is taken. The consideration is not increased by the quantity taken and is not conditional upon the passing of title.

An example is the right reserved to take fish from waters of land conveyed. It is an interest or estate in the land and is distinguished from a pure easement, which is a right or interest without profit. Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575; see Jones v. Trulock, 172 Ga. 558, 158 S.E. 326.

Where the owner of two lots leased one for a filling station and in the contract granted the right to remove soil from the other lot to "fill in" the leased lot, the right was one to profit a prendre and existed only for a reasonable time. The consideration was for the right and not for the dirt. Moxley v. Adams, 190 Ga. 164, 8 S.E.2d 525.

In La Rowe v. McGee, 171 Ga. 771, 775, 156 S.E. 591, the court said that a lease of the right to take sand in its natural condition is a sale of the sand as realty and must be in writing. The court said that the sand in that case was not necessarily sold as personalty, as was the case in Graham v. West, 126 Ga. 624, 55 S.E. 931. The consideration was paid for the right to take without regard to the amount of sand, the title to it, or the use to be made of it. The so-called lease was probably a right to profits a prendre, which would be an interest in land and which would have to be conveyed by written instrument.

Grantor reserving sand had title to sand defeasible upon failure to remove in reasonable time. Grant v. Haymes, 164 Ga. 371, 138 S.E. 892.

In Treisch v. Doster, 171 Ga. 525, 156 S.E. 231, it was held that a conveyance of trees for four years for turpentine purposes was a mere license and passed no interest in realty. The same in Lott v. Denton, 146 Ga. 363, 91 S.E. 112. Also, a deed to timber and logs to be manufactured into cross ties for 12 months created a mere license and passed no title to timber. Johnson v. Truitt, 122 Ga. 327, 50 S.E. 135. Also, in Lufburrow v. Everett, 113 Ga. 1054, 39 S.E. 436, 437, where timber was conveyed, for a gross consideration, for the purpose of cutting, it was held that grantee had only a reasonable time to cut it. The court said that the grantee "purchased only the right to cut".

Other cases hold that, where the parties so intended, a sale of timber to be cut and removed conveys not a mere license...