Georgia Code|§ 51-12-51. Recovery by Person Holding Security Interest in Land for Conversion of Timber; Use of Converted Timber by Owner

                                                
 
 Every person, firm, or corporation who, without the written consent of the person holding legal title to land or to an interest in land as security for debt, as shown by the public records of the county where such land is located, buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to the use of himself, itself, or another any trees growing or grown on such land shall be liable to the holder of the legal title for such trees, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by him or it, or for the value of such trees, provided that recovery may not be for more than the unpaid portion of the secured indebtedness, interest thereon, and a reasonable attorney's fee. Recovery may be had by action at law from one who purchases, without the consent of the holder of the legal title, such interest in the trees, mineral or other rights, or interest in the encumbered real estate, either jointly or severally, with the holder of the equitable title. 
 
 The equitable owner of the land shall be allowed to use the timber for his own use, such as for firewood or other necessary uses of timber in and around his farm. 
 
 
 (Ga. L. 1939, p. 340, § 1.) 
  Law reviews.  
 - For article, "Timber Transactions in Georgia," see 19 Ga. B. J. 413 (1957). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). 
  JUDICIAL DECISIONS  
 Action for trespass for cutting timber under this section necessarily incidentally involves title because it involves the question of whether the entry was legal or illegal. Spillers v. Jordan, 96 Ga. App. 426, 100 S.E.2d 483 (1957). 
 
 Perfect legal title is not essential to right of recovery for trespass for cutting of timber on land; and the holder of written evidence of title which is color of title, who has actual possession of the land and the right of possession of the entire tract described in the written evidence of title (color of title), has a right to sue in trespass anyone who interferes with one's actual possession or one's right of possession by cutting timber thereon. Swinson v. Jones, 74 Ga. App. 109, 38 S.E.2d 878 (1946). 
 
 Prior to passage of this section, holder of security deed without more was not authorized to institute action for value of timber cut from land and was not entitled to recover on possession alone when the evidence did not show that the holder was in the actual possession of the portion of the land from which the timber was cut. Swinson v. Jones, 74 Ga. App. 109, 38 S.E.2d 878 (1946). 
 
 One who owns legal title to property under security deed is entitled to recover in action at law value of timber cut off land if it did not consent for the timber to be cut, regardless of whether the owner of the equity in the property sold the timber to the defendant and received payment therefor. Davis v. Rome Kraft Co., 96 Ga. App. 450, 100 S.E.2d 473 (1957), rev'd on other grounds, 213 Ga. 899, 102 S.E.2d 571 (1958). 
 
 The plaintiff's interest in the land as the holder of legal title under the installment contract at the time the timber was cut was sufficient to give it a cause of action after the plaintiff demonstrated that its interest in the property was recorded in the public records of the county where such land was located. Southern Land & Cattle Co. v. Simmons, 202 Ga. App. 734, 415 S.E.2d 329 (1992). 
  Proof of use to which trees were put is not an element.  
 - When a person without authority removes another person's trees in order to improve the view, there is an unauthorized exercise of ownership rights over the trees; to what specific "use" the trees are put after the unauthorized removal does not impact on the fact that in removing the trees without authority the remover has converted them to the remover's own "uses." Thakkar v. St. Ives Country Club, 250 Ga. App. 893, 553 S.E.2d 181 (2001). 
  Cutter of timber was strictly liable despite being hired contractor.  
 - Timber cutter was strictly liable for damages under the Georgia Timber Collateral Conversion Statute, O.C.G.A. § 51-12-51, despite the cutter's claim that the cutter was simply acting as a contractor under the direction of another; however, the holder of a security deed was not entitled to damages for the diminished value of the property, but only for the value of the trees. Redcedar, LLC v. CML-GA Social Circle, LLC, 341 Ga. App. 110, 798 S.E.2d 334 (2017). 
 
 Under this section holder of security deed has valid cause of action against not only defendant who cut timber, but also against purchaser of timber. Sohr v. Carpenter, 156 Ga. App. 126, 274 S.E.2d 123 (1980). 
 
 Conveyance of title to given land neither passes title to timber cut nor assigns right to recover damages for the trespass resulting from its wrongful removal and conversion. Rome Kraft Co. v. Davis, 213 Ga. 899, 102 S.E.2d 571 (1958). 
 
 Vendee of land upon which trespass is committed while it is property of the vendor has no right of action against the trespasser for damages thus occasioned, which are recoverable by the vendor. Rome Kraft Co. v. Davis, 213 Ga. 899, 102 S.E.2d 571 (1958). 
  Written consent required.  
 - Borrower's contention that bank's chief executive officer granted verbal consent for the sale of timber from land on which bank held a security interest did not satisfy O.C.G.A. § 51-12-51 which clearly and unambiguously requires written consent. Martin v. Fairburn Banking Co., 218 Ga. App. 803, 463 S.E.2d 507 (1995). 
  Damages for diminished value not allowed.  
 - Holder of a security deed on property from which timber was cut without authorization was not entitled to damages for the diminished value of the property, but only for the value of the trees; however, evidence of diminished value was relevant for purposes of attorney's fees and punitive damages. Redcedar, LLC v. CML-GA Social Circle, LLC, 341 Ga. App. 110, 798 S.E.2d 334 (2017). 
 
 In an action for timber conversion, the trial court erred when the court denied the plaintiff's motion in limine to exclude parol evidence concerning the plaintiff's alleged consent to the timber company's cutting and other topics because O.C.G.A. § 51-12-51(a) clearly and unambiguously required written consent and any verbal consent to cut timber on the property was inadequate; parol evidence regarding an understanding to cut timber at or even after the closing was inadmissible as it could be taken to contradict the plain terms of the loan documents, which barred cutting without written consent; and the jury apparently considered the parol evidence in the course of reaching the jury's verdict for the timber company. AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581, 784 S.E.2d 913 (2016). 
  Sufficiency of pleadings.  
 - A petition which shows that the plaintiff held a duly recorded security deed to land from which the defendant lumber company cut, removed and converted to its own use pine timber amounting to approximately 150,000 board feet, of the value of $1,900.00; that this was done by the defendant without the consent of the plaintiff, written or otherwise; and that the balance due on the indebtedness secured by the security deed was $2,710.45, which was some $800.00 more than the alleged value of the timber cut and removed from the land by the defendant, set out a good and valid cause of action pursuant to this section for the value of the timber in question. Cordele Sash, Door & Lumber Co. v. Prudential Ins. Co., 86 Ga. App. 738, 72 S.E.2d 497 (1952). 
 
 In an action for trespass and damage to trees, evidence that a power corporation exceeded a condemnation order by cutting trees outside the right-of-way was sufficient to support a jury finding of bad faith and the award of attorney fees. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993). 
  Bank that held security interest could not be forced to accept money satisfaction of its interest.  
 - Question was whether the court could or should permit debtor to sell the timber and keep the proceeds over the objection of a bank, which held a security interest in the timber. Debtor could not withhold even part of the proceeds from the timber sale to pay administrative expenses and comply with O.C.G.A. § 51-12-51(a), and thus, Georgia law did not authorize the debtor to sell the timber as required by 11 U.S.C. § 363(f)(1); furthermore, the bank could not be forced to accept a money satisfaction of its interest in the timber because another means of relief existed, an injunction. Walton v. Gillikin (In re Gillikin), Bankr. (Bankr. S.D. Ga. Nov. 21, 2011). 
  Attorney fees.  
 - Because O.C.G.A. § 13-1-11 did not authorize the recovery of attorney's fees in any tort claim and the timber company that did the cutting was not a party to and did not sign either the deed to secure debt, the original promissory note, or any of the subsequent loan agreements, the trial court erred when the court instructed the jury as to the provisions for attorney fees under § 13-1-11, but not when the court instructed the jury to consider whether to award the plaintiff reasonable attorney fees, to which the plaintiff was entitled under the timber conversion statute, O.C.G.A. § 51-12-51(a). AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581, 784 S.E.2d 913 (2016). 
 
 Cited in Swinson v. Jones, 72 Ga. App. 147, 33 S.E.2d 376 (1945); Henderson v. Easters, 178 Ga. App. 867, 345 S.E.2d 42 (1986); Ward v. Coastal Lumber Co., 196 Ga. App. 249, 395 S.E.2d 601 (1990); Coker v. Culter, 208 Ga. App. 651, 431 S.E.2d 443 (1993). 
 
 RESEARCH REFERENCES 
 
 Am. Jur. 2d. 
 
 - 52 Am. Jur. 2d, Logs and Timber, § 113 et seq. 
  C.J.S.  
 - 87 C.J.S., Trespass, §§ 140, 141. 
  ALR.  
 - Liability of owner of standing timber or timber rights for damages to the owner of the land in connection with the cutting removal of the timber by the former or his servant, or by an independent contractor, 151 A.L.R. 636. 
 
 Rights and remedies in case of encroachment of trees, shrubbery, or other vegetation across boundary line, 76 A.L.R. 1111; 128 A.L.R. 1221. 
 
 Measure of damage for destruction of or injury to trees and shrubbery, 161 A.L.R. 549; 69 A.L.R.2d 1335. 
 
 Rights as between purchaser of timber and subsequent vendee of land, 18 A.L.R.2d 1150. 
 
 Revocation of license to cut and remove timber as affecting rights in respect of timber cut but not removed, 26 A.L.R.2d 1194. 
 
 Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866. 
 
 Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800. 
 
 Measures of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508. 
 
 Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603. 
 
 ARTICLE 4 DAMAGES IN TORT ACTIONS 
 
 Effective date. 
 
 - This article became effective July 1, 1999, except Code Sections 51-12-73, 51-12-74, and 51-12-75, which become effective when funds are appropriated. 
  Law reviews.  
 - For note on 1999 enactment of this article, see 16 Ga. St. U.L. Rev. 277 (1999).