Schackelford Coal Co. v. Knight

*420 GARDNER, J. The action of the court in refusing charge E, which appears in the foregoing statement of the case, is the only assignment of error here urged. The language in defendant’s chain of title granting defendant the timber rights is practically identical with that considered and construed by this court in Kennedy Stave, etc., Co. v. Sloss-Sheffield S. & I. Co., 34 So. 372, 137 Ala. 401. We are of the opinion the insistence as to the correctness of this charge is inconsistent with the rights acquired by defendant under the language of the conveyance as construed in this authority. It was there held that the grant was a “profit a. prendre appurtenant to the interest conveyed, and is in the nature of an easement appurtenant.” That the title to the timber remained in the owner of the surface, and defendant’s right to the use thereof was limited, first, as to the time or occasion of its taking and use in mining and marketing the minerals in the land, and, second, as to the quantity to be taken, “covering and granting no more than shall be found necessary to the mining and marketing of the minerals.” The court in the Sloss-Sheffield' Case, supra, further said: “That which passed b.y the grants as to the timber was not title, but a mere right to -take and use timber on the land when the grantee comes to realize its‘estate by taking out the minerals. Until that time and occasion for the use by the grantee of the timber transpires^the grantors in these instruments may work their own will in respect of the timber.” This authority was cited with approval in the case of Hitt Lbr. Co. v. Cullman Coal & Coke Co., 76 So. 347, 200 Ala. 415. Under these decisions the right to the use of the timber was confined to the mining and marketing operations of those lands. A construction that would extend the right to the cutting of the timber to -be used on other land would be manifestly inconsistent with the limitations of the right as defined in these authorities. The argument to the contrary deals with the question of damages or injury, if any, suffered by the owner of the surface, but the matter here involved in the language of the-charge concerns the right of defendant as to such use of the timber, and no (juestion as to recovery of nominal damages only is here presented; the facts hypothesized in the • charge not excluding a recovery of such nominal damages. The charge here considered extends defendant’s rights to the timber be-1 yond the limitations of the above-cited authorities, and its refusal was not error. Let the judgment be affirmed. Affirmed. SAYRE, MILLER, and BOULDIN, JJ., concur.