THE ATI-OR.NEY GENERAL 

OF TEXAS 

Honorable Wm. J. Lawson 

Secretary of State 

Austin, Texas 

Dear Sir: Attention: Mr. Frank D. Wear 

Opinion No. O-3267 

Re: Are persons engaged in the business of 

buying and selling growing timber subject to and required to register under 

the provisions of the Texas Real Estate 

Dealers License Act? 

your recent request for an opinion of this department on 

the above stated question has been received. 

We quote from your letter as follows: 

"This department would appreciate having the 

benefit of your opinion as to wheth~er or not persons 

engaged in the business of buying and selling of growing timber aresubject to and required to register under 

the provisions of the Texas Real Estate Dealers License 

Act, same being H.B. No. 17, Acts of tie 46th Legislature, Regular Session. 

"This department is in receipt of requests for 

information from several persons as to whether or not 

they are required to register under such Act when engaged in such business. 

"It is our understanding that such persons 

make a sale of the standing timber before any timber 

deed has been executed and while the timber is 2~ part 

3f the realt;;. However, we understand that it is 

always con:emFlated by scch parties that there will be 

a constructive severance at the time of f:7e consumation 

3f the transaction and therefore, 

title :3 tiie tixbel; passes as 

under the deed the 

personalty and not as 

realt;~ . " 

Generally speaking a considerable bccly of case law has 

grown out of t‘he ownership of logs and timber, litiration being found in 

the field of torts and contracts aM also Crimes. P 24 A.L.R. 316; 73 

A,L.R. 842; Tex. Jur. Vol. 28, 362). The word "timber", in its primary ~ 

mean,ing, is "t‘hat sort of wood which is proper for buildings, or for too-

utensils, furniture, carriages, fences, ships, an; the like, usually S2~~Y

of felled trees, but sometimes of those standing. (McCauley v. Sta~te, 

43 Tex. 374). 
H;norable Wm. J. Lawson, Page 2 S-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 

1 

urposes and personalty for others. 

2 3 S.W. 862; Dunsmore 

(See E.L. Bruce Co. v. 

Hannon, v. Blount-Decker Lumber Co., 198 S.W. 

603; Montgomery v. Peach River Lumber Co., 117 S.W. 1061). 

follows: 

We quote from Texas Jurisprudence, Vol. 28, page 369, as 

"'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). 

follows: 

We quote from the case of Davis v. Conn, 161, S.W. 33 as 

"There are quite a number of generally reported 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 reasons 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 rath,er turn on the ooint 

that in them the agreement of the parties was noi 

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 t;hey me woted and from 

which they draw their support, therefore, in that 

sense, t:he sale passed an interest to real estate. 

And the reascsn for the hclding in a number of cases 

that a sale oi' gr9Jing trees is a Sale Gf Chattels 

Oilly is that in the contemplation and agreement 2f the 

parties in sucii particular cases the sale was made in 

prospect 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: 
Honorable Wm. J. Lawson, Page 3 G-3267 

"It is quite well settled by the cases that 

growing trees may by the agreement of the parties be 

severed, in contemplation of law, from the land, and 

be dealt with in the contract as personaty removable 

immediatelv or timely without an actual severance at 

the time."- (Davis v, Conn, 161 S.W. 39; hmey V. 

Dowell, 207 S.W. 585:). 

You state in your letter that 'we understand that it is 

always contemplated by such parties that there will be a constructive 

severance at the time of the consumation of the transaction." Such being 

the case, as above stated, it is well settled that growing trees may by 

agreement of the parties be severed in contemplation of law, from the 

land, and be dealt with in contract as personalty removable immediately 

or timely without an actual severance at the time. 

After carefully considering "The Real Estate Dealers' 

License Act" and the definition of the terms real estate dealer and real 

estate salesman as defined therein in connection with the Act as whole 

and the facts stated in your letter, together with the above mentioned 

authorities, we respectfully answer the above stated question in the 

negative. 

we are 

Trusting that the foregoing fully answers your inquiry, 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

AW:RS:wc 

By s/Ardell Williams 

Ardell Williams 

Assistant 

APPROVED APR 3, 1941 

s/ Gerald C. Mann 

ATTORNEY GENERAL 0 F TEXAS 

Approved Opinion Committee by s/SW?? Ch~airnan 

Tnis opinion Considered and Approved in Limited Conference