Florida Yellow Pine Co. v. Flint River Naval Stores Co.

140 Ga. 323 | Ga. | 1913

Lumpkin, J.

Each party claimed under what is called a lease of the timber, for turpentine purposes, from the same owner. The taker of the subsequent lease proceeded to use the timber for those purposes. The holder of the first lease sought to enjoin such operation as a continuing trespass. The presiding judge granted an interlocutory injunction, requiring bond to be given. The case turned on the question, which of the contestants had the superior right-? The instrument under which the plaintiff claimed was in the form of a deed, reciting a present consideration of $1.00 paid, and stating that the further amount of $150 was to be paid on or before December 1st thereafter. It declared that “the beginning of the work •[of] the turpentine business shall be December 1, 1911, and continue until December 1, 1916.” This fixed the limits within which the grantee might exercise the right to use the timber for the purpose named, but did not provide for a forfeiture or loss of the right if he should not begin work on that day. The date mentioned for beginning the work and that for payment were the same, but there was no provision for a termination of the right in case payment should not be made on that date. The paper here involved differs from that considered in Clyatt v. Barbour, 111 Ga. 130 (36 S. E. 468). There was no effort in the present case to use the privilege without payment, nor was there any refusal of payment on demand, nor any allegation of insolvency on the part of the holder of such instrument. The lease included also the grant of rights of ingress and egress, a covenant of warranty, and a right of assignment, and was recorded like a deed. The case is more like that of Baxter v. Mattox, 106 Ga. 344 (32 S. E. 94), than that above cited.

The grantor, on March 4, 1913, made another lease of the same timber for the same purpose to the defendant company. There was no denial that this lessee was affected with notice, and that it was proceeding to use the timber for turpentine purposes. And there was no abuse of discretion in granting the interlocutory injunction, with the protective provisions as to requiring bond. Florida Yellow Pine Co. v. Flint River Naval Stores Co., ante, 321 (78 S. E. 900).

Judgment affirmed.

All the Justices concur.