King & Clark v. Moniac Turpentine Co., 134 Ga. 496

King & Clark v. Moniac Turpentine Co.

134 Ga. 496

| Ga. | 1910

Evans, P. J.

(After stating the facts.) The plaintiffs showed that their immediate grantor, the Charlton Land & Timber Com*499pany, was the owner of the freehold; and their contention is that they are the owners of all the timber granted in their lease by the Charlton Land Timber Company, during the period of their lease, with the restriction that they should not use the same for turpentine purposes. (The defendants, on the other hand, contend that, the turpentine privilege being expressly excepted from the grant, the plaintiffs had no such right or title as would enable them to maintain a .suit to enjoin the defendants from working the timber for turpentine purposes. The correctness of the respective contentions 'of the parties depends upon a construction of the timber deed from the Charlton. Land & Timber Company to King & Clark, an abstract of which appears in the statement of facts. A grant of timber to be cut and removed within a specified time passes title to the timber, subject to be defeated upon a failure to cut and remove it within the time stipulated in the grant. Morgan v. Perkins, 94 Ga. 353 (21 S. E. 574). The grant of the timber by the Charlton Land & Timber Company to the plaintiffs was as broad as is possible for words to make it. The grantors in that deed conveyed all the timber for all uses and purposes, “excepting therefrom the right and privilege of second party or his assigns to cut, box, or hack any living pine trees th.ereon for turpentine purposes.” The exception does not operate upon the grant of the trees, but upon the use to which they may be put by the grantees or their assigns. The grant operates upon all the trees conveyed, and the exception does not undertake to except any tree upon the land. The grantees are given the right during the period of the lease to use the timber for any purpose, except that they'may not turpentine it. They may cut the trees and manufacture them into cross-ties or lumber, but they are prohibited by their deed from turpentining the timber. The exception in the lease is more in the nature of a covenant not to put the timber to turpentine use than it is an exception -of anything which was granted. A covenant by a lessee to plough the demised premises, except the warren, in due course of’ husbandry, was held to imply a covenant not to plough the warren. St. Albans v. Ellis, 16 East, 352. The grantees, therefore, had the' right to use the timber as restricted by the deed. It was their timber, and the restriction that they were not to use it in a particular way gives no right to an insolvent trespasser to damage or destroy *500the timber by making use of it in a manner denied the plaintiff's by their grant.

It would make no difference to the defendants if the deed should be construed as reserving to the grantor the turpentine privileges in the timber, because it does not appear from the record that they are assignees, or privies in estate with such grantor. So far as disclosed by the record they are insolvent trespassers, without any claim of title to the land or the timber; and the existence of a right in some one else to do an act wouíd be no justification to themselves to do the same act, which would have the effect to injure the timber of the plaintiffs by making it liable to be blown down and destroyed by fire. The court erred in rejecting the proffered amendment and also in granting a nonsuit.

Judgment reversed.

All the Justices concur., except Atkinson, J., disqualified.