Dunsmore v. Blount-Decker Lumber Co.

LEVY, J. (after stating the facts as above). The appellee’s right to the timber depends upon the terms and legal effect of the deed set up in the petition. If the instrument should properly be construed as intending to convey the timber in fee simple as an interest in the land on which it stood, then, under the authority of Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803, the appellee would be entitled to have the restraining order granted by the judge; but if the instrument should properly be construed as expressing the intention of the parties to convey the timber as personalty, and not as in the nature of an interest in the land on which it stood, then the restraining order is not allowable and should be denied. For, as disclosed by the record, the agreed limitation upon the right of the purchaser had expired at the time of the injunction, and as a legal consequence the appellant, as owner of the land and timber, would have the legal right to cut the timber as against appellee. The deed in suit, as we conclude, clearly expresses the intention of the parties thereto to deal with the timber as personalty, and not in the nature of realty, and provides a fixed time for the expiration of the right granted. As we have heretofore thoroughly considered and announced the principle of law in respect to the very question here involved, and on similar conveyances, we believe that the ruling in those cases should *604 be adhered to and followed. Beauchamp v. Williams, 115 S. W. 130; Carter v. Clark & Boice Lumber Co., 149 S. W. 278; Lancaster v. Roth, 155 S. W. 597; Lumber Co. v. McWhorter, 156 S. W. 1152. The rule to be followed in determining the allowance of a temporary injunction is that of whether there is a case of probable right and probable danger to the right, as alleged, without the injunction. Whitaker v. Hill, 179 S. W. 539; Miles v. Bodenheim, 184 S. W. 633. And we conclude, as a matter of law, in the construction of the deed, a probable right is not apparent to the appellee. The temporary restraining order of the judge is reversed and set aside.