8 Ga. App. 70 | Ga. Ct. App. | 1910
The Gray Lumber Company brought trespass against Harris et al. for the cutting of the pine timber suitable for sawmill purposes off certain lands in Coffee county. The plaintiff proved title to the lands in John Vickers, and then showed conveyances as follows: A deed dated September 18, 1889, from John Vickers to E. L. and H. Vickers, conveying the timber in disputo, and providing that the grantees were to have three years, from the date of beginning to remove the sawmill timber, in which to remove the same. Also a conveyance of the same timber from E. L. and H. Vickers to W. W. Timmons and H. L. Covington, dated June 23, 1890. Also conveyance from W. W. Timmons to II. L. Covington, dated June 10, 1899, transferring to him an undivided half interest in the timber in dispute; thus putting the entire title in Covington. Also a conveyance from H. L. Covington to the Gray Lumber Compan}^ dated October 20, 1903, conveying not only the timber in dispute, but also the timber on many other lots of land in the same county. The plaintiff proved the value of the timber; and it was admitted that in the year 1904 the defendants cut and carried the timber away. The defendants introduced in evidence a conveyance from John Vickers to Peter Vickers, dated February 3, 1903, conveying the timber in dispute; and showed that Peter Vickers, in March, 1903, transferred this conveyance to the defendants. Both parties, therefore, claim under a common grantor, John Vickers; and so far as the question of title is concerned, it depends merely upon a comparison of the rights of the parties as respectively derived from John Vickers. No question of notice is involved, as the plaintiff’s conveyances were duly recorded. ' The ease mainly hinges upon the fact that in the year 1897 the employees of the Gray Lumber Company, while cutting other timber in the vicinity
A previous suit between the same parties as to the same subject-matter has been before the Supreme Court for adjudication. See Gray Lumber Co. v. Harris, 127 Ga. 693 (56 S. E. 252). In that case a judgment of nonsuit was affirmed. In the present case the court directed a verdict for the defendants.
Defendants’ counsel insist that the decision of the Supreme Court has adjudicated adversely to the plaintiff the point we are now discussing. The Supreme Court merely decided the case then before it, upon the facts there presented; and we have before us a state of facts substantially different in principle. We can not agree with counsel for defendants that the Supreme Court intended to hold, or did hold, that if the Gray Lumber Company trespassed on these lots in 1897, with no authority from the then owners of the timber conveyances to do so, this would operate to give a starting point from which the time mentioned in the limitation in the conveyance would begin to run, either generally as against all persons, or specially as against the Gray Lumber Company, upon its after-wards purchasing the timber from the then holders of the conveyance. If we understand the Supreme Court decision, what they held was that if the Gray Lumber Company cut this timber with the authority of the holders of the timber conveyances, it would operate to start the limitation period to running; and that Mr. Gray’s admissions that they were then the owners of the tract of timber, and that they had bargained for it from Covington, were sufficient to prove that the cutting was in fact done under the conveyance held by Covington, or by his consent. It seems too plain
It is very probable that the full facts of the transaction have not been developed in the evidence. It may be that if the whole truth were known, the Gray Lumber Company did have authority from the owner of the timber to cut it in 1897. If so, then, under the decision of the Supreme Court when the ease was up before, the verdict should be for the defendants, unless Vickers waived his right to insist that this act of cutting a few sticks of timber in 1897 started the limitation.period to running.