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 sellinggrowing timber subject to and required to register under theprovisions of the Texas Real Estate Dealers License Act?
your recent request for an opinion of this department on the above stated questionhas been received.

We quote from your letter as follows: "Thisdepartment would appreciatehaving the benefit ofyour opinion as towheth~eror not persons engaged in the business of buying and selling of growing timber aresubject to and required to register under theprovisions of the Texas Real EstateDealers License Act, samebeing H.B. No. 17, Acts of tie 46th Legislature, Regular Session.

"Thisdepartment is in receipt of requests for information from severalpersons as towhether or not they are required to register under suchAct when engaged in suchbusiness.

"It is our understanding that suchpersons make a sale of the standing timberbefore 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 scchparties that therewill be a constructive severance at the time of f:7econsumation 3f the transaction and therefore, title :3 tiietixbel; passes as under the deed the

personalty and not as realt;~

." Generally speaking a considerablebcclyof case law has grown out of t‘heownership of logs and timber, litirationbeing found in the field of torts and contracts aM also Crimes. P24 A.L.R. 316; 73 A,L.R. 842; Tex. Jur.Vol. 28, 362). The word "timber", in its primary ~ mean,ing,is "t‘hatsort of wood which isproper for buildings, or for too-: utensils, furniture, carriages, fences, ships, an; the like, usually S2~~YC 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 concerningproperty rights in logs or in standing

timbermay involveprinciples of law which are toonumerous tomention. Growing timber or treesmay for onepurpose or anotherhave the status of real property or personalproperty. (SeeMcVey 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 timberwould seem to have the characteristics of real property in any legal situatioN. On the other hand, the interest or ownershipwhich is conditionedupon a cutting and removal of the treesmay have the character or status of real property for some 1urposes and personalty for others.

2 3 S.W. 862; Dunsmore (SeeE.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 thepurpose of amortgage or sale convert it into personalty.'" (SeeDowney 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 theprincipal question of whether such sale operated topass 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 tobe a sale of chattels only. And the reasons andprinciples determining the ruling in such cases upon the effect that shouldbe ascribed to the sale couldwell be considered as furnishing a criterion to determine the effect tobe given the sale in this case. A number of the cases rath,erturn on the ooint that in them the agreement of thepartieswas noi made with a view to the removal and severanceof 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:hesalepassed an interest to real estate. And the reascsnfor 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 salewas made in prospect of the severance and removal of the trees from the land, and not to remain on the land, and therefore, the salewas intended and operated to be a sale as chattels only."

We quote as follows:Honorable Wm. J. Lawson, Page 3 G-3267

"It is quitewell settledby the cases that of the parties be growing trees may by the agreement severed, in contemplationof law, from the land, and be dealt with in the contract as personaty removable immediatelv or timelywithout an actual severance at the time."- (Davisv, Conn, 161 S.W. 39; hmey V. Dowell, 207 S.W. 585:).

You state inyour letter that 'weunderstand that it is always contemplatedby suchparties that therewill be a constructive severance at the time of the consumation of the transaction." Such being the case, as above stated, it iswell settled that growing treesmay by agreement of the partiesbe severed in contemplation of law, from the land, and be dealt with in contract aspersonalty removable immediately or timely without an actual severance at the time.

After carefully considering "TheReal Estate Dealers' License Act" and the definition of the terms real estate dealer and real estate salesman as defined therein in connectionwith the Act as whole and the facts stated inyour letter, togetherwith the above mentioned authorities, we respectfullyanswer 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/ArdellWilliams Ardell Williams Assistant

APPROVED APR 3, 1941 s/ Gerald C.Mann ATTORNEY GENERAL 0 F TEXAS Approved Opinion Committeeby s/SW?? Ch~airnan

Tnis opinion Considered and Approved in Limited Conference