C. W. Zimmerman Mfg. Co. v. Wilson

80 So. 422, 202 Ala. 340, 1918 Ala. LEXIS 421

• Court: Supreme Court of Alabama
• Decided: November 28, 1918
• Docket: 1 Div. 14.
• Status: Published

Opinions

SOMERVILLE, J.

We think the evidence clearly shows that complainant was in the peaceable possession of the land in question at and before the filing of his bill of complaint.

The real issue to be considered is whether any of the pine timber now standing on this land was standing on it and subject to respondent’s grant in June, 1899.

“The word ‘timber’ has an enlarged or restricted sense, according to the connection in which it is employed.” 25 Cyc. 1545.

“In this country the term ‘timber,’ when applied to standing trees, generally means such as are suitable for use in the erection of buildings or in the manufacture of tools, utensils, furniture, carriages, fen'ces, ships, and the like.” Alcutt v. Lakin, 33 N. H. 507, 509, 66 Am. Dec. 739.

In Canada it has been held that young trees which may become timber are not so while they are yet saplings. Corbett v. Harper, 5 Ont. 93, 97.

The word “timber” of commerce means squared sticks of wood used in building. The trees from which they were cut became known as “timber trees.” Hence the word “timber” may mean wood suitable for building houses, ships, etc.; trees cut and squared, or capable of being squared and cut into beams, rafters, planks, boards, etc.; or growing trees, yielding wood suitable for constructive uses. Donworth v. Sawyer, 94 Me. 243, 47 Atl. 521, 523, citing Century Dictionary.

In 17 R. C. L. p. 1066, the following explanation is deduced from the authorities:

“The necessity for an understanding of the meaning of the term arises particularly in a consideration of the meaning of contracts for the sale of timber, and the usual application given it, although varying in some degree with the context and manifest intent of the parties, and local custom, as to trees of a considerable size, or, as it is said, useful for building or the like, as distinguished from saplings and undergrowth, and from those trees suitable only for firewood or cordwood.”

See Balderson v. Seeley, 160 Mich. 186, 125 N. W. 37, 136 Am. St. Rep. 428, 19 Ann. Cas. 1049, note, 1051-1054, where the cases are collected.

In accord with this view, it was said in G. Y. Lumber Co. v. Monk, 159 Ala. 318, 49 South. 248, that “timber is such stuff as is suitable for building and allied purposes.” And the court in that ease took judicial notice of the fact that a tree four inches in diameter at the stump, or point where cut, “would not- afford timber.”

[1] We conclude that the grant under which respondent claims, of “all the pine timber now standing and being on the land,” embraced only such timber as was at that time large enough for building and other constructive uses, when prepared for the market in the usual way. Huron Land Co. v. Davison, 131 Mich. 86, 90 N. W. 1034.

[2] The burden was upon respondent to show that such trees, then existent, still remained on the land, and this we think the evidence fails to do. Moreover, if it were conceded that there still remain some trees which were timber trees in June, 1899, it would be necessary for respondent to point them out in order that their status might be properly adjudged. And, manifestly, .there can be no adjudication of incidental easements in favor of respondent, in the absence of his established ownership of specific trees.

On. the whole ease, we cannot hold that the trial court erred in granting relief, and. the decree will be affirmed.

Affirmed.

MAYFIELD, SAYRE, and THOMAS, JJ., concur.