Texas Attorney General Opinion: O-3267 Page: 2 of 3
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
Honorable Wm. J. Lawson, Page 2 0-3267
Disputes concerning property rights in logs or in standing
timber may involve principles of law which are too numerous to mention.
Growing timber or trees may for one purpose or another have the status
of real property or personal property. (See McVey v. United Timber &
Kaolin Ass'n., 270 S.W. 572; Fidelity Lumber Co. v. Adams, 230 S.W. 177).
A fee simple or absolute estate in timber would seem to have the
characteristics of real property in any legal situatioN. On the other
hand, the interest or ownership which is conditioned upon a cutting and
removal of the trees may have the character or status of real property
for some purposes and personalty for others. (See E.L. Bruce Co. v.
Hannon, 23 S.W. 862; Dunsmore v. Blount-Decker Lumber Co., 198 S.W.
603; Montgomery v. Peach River Lumber Co., 117 S.W. 1061).
We quote from Texas Jurisprudence, Vol. 28, page 369, as
follows:
"'While it is true that standing timber is
generally regarded as part of the realty, yet the owner
may by contract constructively cause a severance, and
for the purpose of a mortgage or sale convert it into
personalty.'" (See Downey v. Dowell, 207 S.W. 585).
We quote from the case of Davis v. Conn, 161, S.W. 39 as
follows:
"There are quite a number of generally re-
ported cases dealing with the sale of growing trees
upon the principal question of whether such sale
operated to pass aninterest in land or to be a sale
of chattels only. By one line of the cases the
question is answered that according to the facts
therein the sale of growing trees operates to be a
sale of an interest in land. By the other line of
cases a sale of growing trees is held under the facts
therein to be a sale of chattels only. And the rea-
sons and principles determining the ruling in such
cases upon the effect that should be ascribed to the
sale could well be considered as furnishing a criterion
to determine the effect to be given the sale in this
case. A number of the cases rather turn on the Doint
that in them the agreement of the parties was not
made with a view to the removal and severance of the
trees from the soil, but their remaining thereon;
and standing trees being legally regarded as part and
parcel of the land in which they are rooted and from
which they draw their support, therefore, in that
sense, the sale passed an interest to real estate.
And the reason for the holding in a number of cases
that a sale of growing trees is a sale of chattels
only is that in the contemplation and agreement of the
parties in such particular cases the sale was made inprospect of the severance and removal of the trees
from the land, and not to remain on the land, and
therefore, the sale was intended and operated to be
a sale as chattels only."We quote as follows:
Upcoming Pages
Here’s what’s next.
Search Inside
This text can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Text.
Texas. Attorney-General's Office. Texas Attorney General Opinion: O-3267, text, 1941; (https://texashistory.unt.edu/ark:/67531/metapth260496/m1/2/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.