Handcock v. Massee & Felton Lumber Co.

56 S.E. 1021, 127 Ga. 698, 1907 Ga. LEXIS 462

Opinion

.Beck, J.

(After stating the facts.)

1. The acts alleged to have constituted the trespass complained of in this action were committed within the period of time during which the defendants, under the terms of the lease, would have had a right to enter upon the premises described, for the purpose of cutting such timber as was described in the lease; and the only question left for determination is whether the trees alleged to have been cut and carried away from said lands were included in the terms descriptive of the timber mentioned in the paper referred to. And those descriptive terms, as set forth in the granting part of the deed, are: “all and singular timber suitable for sawmill purposes growing on”“ the described lot of land. The plaintiff contends that this description included only the green timber, basing his contention on the technical definition of the word “timber,” and the use of the word “growing;” while the defendant contends that the expression quoted from the deed was more comprehensive in meaning, and included all timber suitable for sawmill purposes at the time of the execution of the lease, whether green or dead, and that the word “growing” was identical in meaning with the word “being.”

•While there is some confusion in the definition of the word “timber,” we think that, limited as it is by the further definitive term “growing,” the contention of the plaintiff is the sounder of ‘the two positions taken by opposing counsel. In the case 'of Dickinson v. Jones, 36 Ga. 97, the following definition is laid down: “Timber is used technically to denote green wood of the age of 'twenty years or more, such as oak, ash, elm, beach, maple, and with us would include walnut, hickory, poplar, cypress, pine, .■gum, and other forest trees.” And even if we were not prepared 'to adopt, as sufficiently comprehensive, that definition of the term, when we consider not only the words “growing on the lot,” with 'their restrictive signification, but the subsequent qlause in which it is stipulated that the lessees are to “have and use said described 'timber for sawmill purposes as aforesaid, ■ with all the rights and privileges of cutting and boxing the trees on said land,” the construction which we have given to the effect of the lease, relatively 'to the contested issues, is ipanifestly correct.

2, 3. It is unnecessary to elaborate the rulings made in head-notes 2 and 3. Except in the particular pointed out in the last headnote, the petition was not open to criticism made in any of the grounds of the special demurrer.

Judgment reversed.

All the Justices concur, except Fish, G. J., iabsent.