122 Ga. 486 | Ga. | 1905
(After stating the facts.) The defendant held under the deed which conveyed to him the timber in fee simple. It said nothing whatever about timber suitable for sawmill purposes, or for turpentine purposes. In this respect it differs from the instruments which- are coustrued in McRae v. Stillwell, 111 Ga. 65; Goette v. Lane, 111 Ga. 403; Allison v. Wall, 121 Ga. 822. Whether, in view of Baxter v. Mattox, 106 Ga. 354, this is a material difference we purposely refrain from discussing. The decision might be of far-reaching consequence. The point should only be decided after full argument. The present case can be determined on another point which is relied on by the defendant in error, and in view of which also the direction of the verdict must be sustained. Even in those cases where the grantee of the timber privilege must exercise the same within a reasonable time, the instrument must be construed most strongly against the grantor and those thereafter claiming under him. Civil Code, § 3675, par. 4. When the defendant produced the oldest deed conveying the timber rights, the burden was cast upon the opposite party to show that a reasonable time had expired within which the timber should have been cut and removed. The time might be so short as to warrant the court in saying that, as a matter of law, a reasonable time had not expired. Again, the time might be so long as would warrant the court in saying, as a matter of law, that a reasonable time had expired. But except in extreme cases it would be necessary to make the proof as to the circumstances surrounding the property and the parties at the time of the execution of the instrument, and to make the showing indicated in Goette v. Lane, 111 Ga. 403, and Allison v. Wall, 121 Ga. 822, so as to give the jury the proper data from which to make the calculation and then determine whether a reasonable time had or had not expired. This might be influenced by many considerations. What might be a reasonable time to remove one class of timber might not be so as to another. It might therefore be important to show whether the trees were pine, oak, or cypress. The question might be affected by a consideration of the size of the tract of land, the purposes for which the purchase was made, and also the purpose with which the timber
The defendant here held the oldest recorded deed to the trees. There was nothing to show what was the situation of the property or the parties at the time it was executed^ nor anything to indicate to the jury what was expected to be done, what could have been done or what ought to have been done by the grantee. Neither the jury nor the trial judge nor the appellate court can determine, as matter of law, what was a reasonable time. All doubts must be resolved in favor of the holder of the oldest recorded deed; and the judgment directing a verdict in favor of the defendant was proper. •Judgment affirmed.