175 Ga. 883 | Ga. | 1932
This was a suit by B. M. O’Neal, for the use of J. K. Sealy, against Neal Lumber & Manufacturing Company and others, to enjoin the cutting and removal of timber situated upon land the legal title of which was in O’Neal and the equitable title in Sealy as the plaintiff’s vendee. The petition sought also to enjoin the commission of other alleged acts of trespass upon the land in question. The court overruled a general demurrer to the petition, and granted an interlocutory injunction, and the defendants excepted. Neal Lumber & Manufacturing Company was the real party defendant, and no reference to other parties defendant is necessary.
The petition shows that the plaintiff holds the title to the land by mesne conveyances from Mathew Alday and Henrietta Alday, and that the defendant claims the title to the timber growing upon the land by grants from the same parties. The petition sets forth' a copy of a contract signed by Henrietta Aldajr, which in turn refers to a previous “lease and timber deed” signed by Mathew Alday. These instruments purport to convey the trees and timber upon the land in question for certain periods respectively, and are alleged to constitute the bases of the defendant’s claim. The petition contains the following additional allegations: The defendant is claiming the right to cut and remove trees and timber to which it has no right under either of the Alday contracts, and is actually cutting and removing second-growth hickory to which it has no title, and is threatening to cut and remove “any and all trees now growing upon the land.” A private road has been made through the land by Sealy for his “ convenience and enjoyment,” and the defendant has “cut down trees across said roadway, blocking the same and preventing the use thereof, in violation of the terms of its said lease.” The plaintiff’s usee has already been damaged in the sum of $700, and irreparable loss and damage will be sustained by him unless an injunction should be granted. The prayers are for process, and injunction, and for a judgment for the damage alleged to have been sustained.
The exhibit attached to the petition shows a contract made be
The petition alleged that the defendant was cutting and removing trees and timber, including second-growth hiekorjr, to which it had no title; also that the defendant had blocked a private road made upon the land by the plaintiff’s usee in the exercise of Iris right of possession, and that before suit the usee had sustained damage in the sum of $700 by reason of these acts of trespass. It was averred that the plaintiff and the defendant claim under a common source of title, and that irreparable loss and damage would be sustained by the usee unless injunction should be issued. The petition prayed for injunction, and for a money judgment for the accrued damage. The defendant does not contend that the leases carried the right to cut and remove second-growth timber, nor is the complaint limited to acts of trespass in reference to the trees or timber. The plaintiff is not proceeding under the timber cutters’ act (Civil Code of 1910, § 5504), but is seeking an injunction upon general equitable principles. Huxford v. Southern Pine Co., 124 Ga. 181 (2) (52 S. E. 439); Hart v. Lewis, 126 Ga. 439 (55
Mathew Alday conveyed the trees and timber for a period of 25 years from March 18, 1909, the subject-matter being described as “all and singular the trees and timber, of whatever kind or character, standing or tying upon the ground.” On June 22, 1921, Henrietta Alday as a subsequent owner of the land extended the former lease for a period of 20- years, or until March 18, 1954. Not only this, but she granted and conveyed “all of the trees and timber of every kind and description growing or being” on the land, and granted “full license and privilege at any and all times until March 18, 1954, to cut and remove any and all trees and timber growing or being on said lands.” In the instrument signed by Henrietta Alday, the former contract was referred to as a “lease and timber deed.” The sole matter for determination is the construction of these instruments with respect to the property or property rights therein conveyed. The trees and timber are described in substantially the same language in each instrument 3 but the second contract was not only an extension agreement, but was a new conveyance of “all of the trees and timber of every kind and description growing or being” on the land, good for the period therein specified, namely about 33 years. The defendant does not contend that it had the right to cut and remove any trees or timber not in existence upon the land on the date of the lease executed by Henrietta Alday, but'it does contend that the lease conveyed all of the trees which then stood upon the land and which would grow and become timber during the life of the contract, regardless of whether they were useful as timber at the execution of the instrument. It
What is meant by the language “all of the trees and timber of every kind and description growing or being” upon the land, as used in the lease executed by Henrietta Alday ? We may simplify the question to some extent by considering this language as if the phrase “and timber” had been omitted. What then was intended by the words “all of the trees”? The defendant’s answer says in effect that a plant may be called a tree even before it has attained such growth as to be useful as timber; and for the purposes of this case we may and do assume, without deciding, that this is a correct distinction. A tree has been defined to be “a woody plant, the branches of which spring from and are supported upon a trunk or body. It may be young or old, great or small.” Clay v. Postal Telegraph Co., 70 Miss. 406, 411 (11 So. 658). The following is a definition found in Webster’s New International Dictionary: “A woody perennial plant having a single main axis or stem (trunk), commonly exceeding 10 feet in height and usually devoid of branches below, but bearing a head of branches and foliage or a crown of leaves^at the summit. There is no exact line of demarcation between trees and shrubs, and many plants are capable of assuming either habit.” But a word may have one meaning in a dictionary and an entirely different meaning in a contract, and its meaning in different contracts will vary according to the intention of the parties. In the construction of every contract the main object is to arrive at the intention of the parties, and to this end the words must be examined in the light of all the attendant circumstances. Words so employed may not always be considered in the abstract, but the situation of the parties may and often must be looked to in arriving at' a proper interpretation of the language used. In the present case it appears that on the one side was an owner of trees which were being offered for sale, and on the other was a person who desired to purchase the same for use as timber. This is apparent from the contract itself, as well as from the facts and circumstances proved by the evidence.
The occupation of the vendee and the obvious purpose for which the trees were desired are matters which must be taken into con-
But the lease under consideration not only conveyed “all of the trees and timber,” but further granted and conveyed “full license and privilege at any and all times, until March 18, 1954, to cut
Accordingly, it is not unreasonable to say that the lease would not take in other trees as time passed. The oral testimony as to the intention of the parties to the lease contract could not have the effect of varying the plain and unambiguous terms of the instrument —certainly not as against the plaintiff, who acquired the land subject only to such rights as were conveyed thereby, without regard to any verbal agreement between the parties. Burke v. Anderson, 40 Ga. 535, 539; Boardman v. Taylor, 66 Ga. 638 (2). We are aware that our-construction of the lease in question may not be in accord with the views expressed by some other courts in like cases, but it is in harmony with previous adjudications by this court and with the weight of authority. See 28 Am. & Eng. Enc. Law, 542 (5); 38 C. J. 161, § 37 (b), and cit. The court did not err in granting an interlocutory injunction against the cutting and re
Judgment affirmed.