Beasley v. Central of Georgia Railway Co., 17 Ga. App. 615

17 Ga. App. 615 | Ga. Ct. App. | 1916

Russell, C. J.

Beasley brought suit against the Central of Georgia Bailway Company, alleging that he, as the lessee of described lands, had been damaged by the negligence of the defendant company in setting fire on these lands. It is alleged that this fire caused “about 250 acres of woodland to be burned over, destroying all the trash and litter, exposing the land to the hot, baking sun, and killed, destroyed, and damaged practically all the wood timber on said 250 acres.” The plaintiff bases his right of action upon the fact that he was a lessee of the lands, it being alleged that “under the terms of said lease [he] is to have the use of said lands for and during the years 1914, 1915, 1916, lOU, and 1918 inclusive, and is further allowed to clean up and put into cultivation such lands that the timber has been cut and sawed; all wood cut from this land can be sold by said Beasley.” The items of damage claimed in the original petition are, “Damage to wood timber on 250 acres, $2 per acre, or $500. Damage to land by loss of this decaying trash and litter, and by causing it to be exposed to the sun, $1 per acre, or $250. Difference in the time it would take to cut green timber, one acre, and expense it would take to cut dead or burnt timber on one acre, $1 per acre, $250. By amendment the plaintiff alleges that “under the terms of the lease contract referred to in his petition, he owned the timber and wood on the 350 acres of land which was burned over on May 19, 1914, and that he had the right to cut and sell said wood.”

• The defendant demurred upon the ground that the petition set forth no cause of action, and demurred specially “because the plaintiff is not entitled to have and recover either for any damage to the wood timber on the premises described in the petition or for damage to the land, for it appears that the plaintiff is only the lessee of Mrs. L; P. Reese, who alone would have the right to bring an action for damages for injury to the timber and the land described in the petition.” None of the paragraphs of the original petition were stricken by the plaintiff.

It will be noted that no allegation is made that any of the wood timber was severed from the realty. As to the right of a. lessee to recover for such a trespass, see Moore v. Vickers, 126 Ga. 42 (54 S. E. 814); Southern Railway Co. v. State, 116 Ga. 276 (42 S. E. 508). As to the right of the plaintiff to recover for the damage to the land caused by the burning of the trash and litter thereon, see Comer v. Newman, 95 Ga. 434 (22 S. E. 634). It is not necessary to add anything further to what we have said in the headnote. Judgment affirmed.