Opinion
5 Div. 507.
April 12, 1951.
Appeal from the Circuit Court, Tallapoosa County, Albert Hooton, J.
Tom F. Young and Richard H. Cocke, of Alexander City, for appellant.
Merchantability of timber is determined by the standard in use at the time the deed is executed, in the absence of anything in the conveyance showing a contrary intention. It includes timber ordinarily used for sale in the particular locality. Alexander v. Bond Bros., 232 Ala. 533, 168 So. 561; 38 C.J. 160, § 36; Wright v. Bentley Lbr. Co., 186 Ala. 616, 65 So. 353; Jasper Lbr. Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417; McCorkle Sons v. Kincaid, 121 Va. 546, 93 S.E. 642. The words "Merchantable Timber", taken along with testimony of ready market for pulpwood in the vicinity, embrace pulpwood. Great Southern Lumber Co. v. Newsom Bros., 129 Miss. 158, 91 So. 864; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450; Casselberry v. Stair, 34 Pa.Dist. Co.R. 72; Williams v. Johns-Carroll Lbr. Co., 238 Ala. 536, 192 So. 278. The word "Merchantable", in a timber contract, with nothing to explain what kind of timber was meant, is sufficiently ambiguous to permit introduction of parol evidence to explain it. Nettles v. Lichtman, supra; Kerl v. Smith, 96 Miss. 827, 51 So. 3.
Ralph Segrest, of Dadeville, for appellee.
Timber is that sort of wood which is proper for building or allied purposes. 38 C.J. 144; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450; Wisconsin-Alabama Lumber Co. v. Sewell, 222 Ala. 696, 134 So. 9; Williams v. Johns-Carroll Lbr. Co., 238 Ala. 536, 192 So. 278. The deed conveyed only merchantable timber on the land at the date of its execution, and did not include or extend to timber not then merchantable but which may become so in the future. Wisconsin-Alabama Lumber Co. v. Sewell, supra.
This appeal is from an order refusing to grant a temporary injunction under § 1057, Title 7, Code of 1940, after the application therefor had been set down for hearing by the Hon. Albert Hooten under § 1054.
The injunction sought was to restrain and enjoin the defendant, his agents and employees from interfering with complainant and its agents, servants and employees from entering upon the defendant's lands of which he was in possession, and cutting and removing therefrom merchantable timber remaining on said lands after previous operations in respect thereto by complainant under a timber deed executed by the defendant to the complainant on the date of October 23, 1948, conveying to the complainant "All merchantable timber now standing and growing upon the following described lands."
The judge after taking much testimony given orally in his presence entered an order denying the writ with the observation: "The court is of opinion from an examination of the entire contract that an ambiguity is made to appear and concludes that the intent of the Parties to the contract in view of all the surrounding facts and circumstances according to the evidence herein, was not to include pulp-wood within the term 'merchantable timber' mentioned in the contract or deed of conveyance involved in this case. Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450, 91 A.L.R. 1455; and the court further concludes from a preponderance of all the evidence that Complainant has cut and removed all the merchantable saw timber from the lands described in the contract or deed of conveyance involved herein whereby it would amount to an oppression and hardship to grant an injunction against respondent in this case until the merits thereof are fully considered and determined upon a final hearing. Jones v. Jefferson County, 203 Ala. 137, 82 So. 167."
There is an absence of allegation in the bill going to show that there is an ambiguity in the timber deed attached thereto and made a part thereof, and construing said writing from its four corners, it only conveyed timber suitable for being manufactured into lumber for building purposes at the time of its execution, and it was enough to sustain the denial of the injunction that the complainant in its previous operations had cut and removed all such timber.
The order appealed from is therefore affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur.