3 Ga. App. 377 | Ga. Ct. App. | 1908
On January 16, 1882, George W. Slade executed to Henry Banks a deed conveying “all the pine tiinber suitable for saw logs of every size and dimension, situated and being on' the north half of lot 403, 10th district of Berrien count}*, 245 acres, provided the same be cut within five years from date.” On December 16, 1882, the said George W. Slade executed a deed to Mathew E. Patton, conveying to him, “all that tract or parcel of land situate, lying, and being in said county of Berrien, known and distinguished as the north half of lot 403 in the 10th' district of originally Irwin, now Berrien county, containing 245 acres more or less. The sawmill timber heretofore sold to Henry Banks excepted.” Both of these deeds were for a named consideration, and were duly executed and recorded. Henry Banks, the grantee in the first deed above mentioned, did not exercise his right under it to cut and remove any timber on the said land lot during the five-years as limited in said deed, nor did he convey his right to the timber to any other person. In 1899 the Gray Lumber Company, by virtue of a conveyance from Mathew E. Patton, entered upon the lot of land conveyed by Slade to Patton, and cut and removed therefrom all of the pine timber located thereon suitable for sawmill purposes, and manufactured it into lumber. The plaintiffs in error brought an action of trespass against the Gray Lumber Co., claiming to be the true and lawful owners of four fifths of the half interest in this timber so cut and removed and manufactured into lumber, alleging in their petition that they were the heirs at law of the said George W. Slade, and, as such, entitled to the timber. The defendant filed general and special demurrers to the petition. The special demurrers were met by appropriate amendments, and the general demurrer was sustained and the petition dismissed.
We do not think that these two deeds are at all ambiguous, and the construction which we here place upon them is the only reasonable legal construction. Nor is this construction at all at variance with the decision of the Supreme Court in the case of Levis v. Parrott Lumber Co., 119 Ga. 476, which is relied upon by the plaintiffs in error. In that case the conveyance from the original owner of the soil and timber to the “sawmill and turpentine privileges” on the lot of land expressly provided: “all timber remaining [on said land lot] to revert” to the grantor after a period' named, to wit, at the expiration of eight years. In the case sub judice, no provision was made, in the deed from Slade to Banks, that the timber remaining on the land at the end of five years should revert to Slade, the grantor, or to any one else. In other words, this conveyance contained no reversionary clause; and at the end of the period of five years, without such clause, it necessarily remained as a part of the realty, and was the property of whomever at that time had title to the realty. Standing tim
Judgment affirmed.