49 So. 257 | Miss. | 1909
delivered the opinion of the court.
On April 11, 1904, the appellants sold to the appellees theE. Yz of section 34, township 27, range 1 w., in Quitman county; the deed containing a reservation of the timber as follows : “By this deed of conveyance made by us (said Butler and Barrow) to the said McPherson Bros., we expressly reserve and retain the right and title to any and all timber on said land herein conveyed, and which we may remove therefrom at any time not later than the 1st day of October, 1905, and all the timber thereon which is not removed by us by said date is to be-
We learn from the brief of counsel for appellants that the learned judge below was of the opinion that the plea of res ■adjudícala was not sustained, in which we agree with him, but further held that appellants were not entitled to recover under the rule announced in Clark v. Ingram, 90 Miss. 479, 43 South. 813. This case correctly decided that any timber standing or •cut and lying in its natural state upon the land at the expiration ■of the time fixed by the contract for the removal thereof would belong to the owner of the soil. But does the word “timber,” as used in the contract here under consideration, embrace articles manufactured out of the timber? These ties were manufactured at a cost of fifteen cents each, and the greater part of their value was the result of the skill and labor expended in such manufacture. The word “timber,” used as a generic term, according to Mr. Webster, means “that sort of wood which is proper for huildings, or for tools, utensils, furniture, carriages, fences, ■ships, and the like; usually said of felled trees, but sometimes ■•said of those standing” — and not the articles in their completed •state, for the manufacture of which the timber may be used. See, also, Anderson’s Dictionary of the Law.
When the timber was manufactured into railroad cross-ties,
The peremptory instruction was therefore improperly given, and the judgment is reversed and cause remanded.