Vol. 4, No. 3, Pg. 29. Timber-r-r-r-r-r.

• Author: By Suzanne E. Scarborough

South Carolina Lawyer

1992.

Vol. 4, No. 3, Pg. 29.

Timber-r-r-r-r-r

29Timber-r-r-r-r-r...By Suzanne E. ScarboroughA 1988 amendment to the South Carolina Uniform Commercial Code will have far-reaching effects on the construction of

Timber Rights in South Carolina

Under South Carolina common law, standing trees are deemed realty and continue to be realty until severed from the soil. D.W. Alderman & Sons Co. v. Kirven, 209 S.C. 125, 134, 40 S.E.2d 791, 794 (1946). Conveyances of timber rights in turn are construed by courts as conveyances of interests in land.

However, an amendment to S.C. Code § 36-2-107(2) that became effective January 1, 1989 states that sales of timber are now to be deemed as sales of goods governed under the UCC. This amendment will affect the construction of timber rights contracts and timber deeds, as well as the remedies and damages recoverable for a breach of such contracts. Other effects may include application of the statute of frauds and venue statutes to timber sales contracts.

Timber Rights Under the Common Law

Under South Carolina common law, timber rights were treated as interests in land and were generally conveyed by timber deeds. For example, a conveyance of all standing timber on a certain tract of land with no time period from removal stated has been held to create a fee simple interest inthe timber. Wilson Lumber Co. v. D. W. Alderman & Sons Co., 80 S.C. 106, 109, 612 S.E. 217, 218 (1908). Such a conveyance with a specific time limitation for removal has been held to create a determinable or defeasible fee. Hill v. E.P. Burton Lumber Co., 90 S.C. 176, 177, 72 S.E. 1085, 1086 (1911).

One of the effects of treating such a conveyance as creating real property rights is the remedy available for breach of the contract to purchase timber. A party suing under the terms of the timber deed may be able to sue in tort for trespass rather than merely for breach of contract. Chapman-Storm Lumber Corp. v. Minnesota

30South Carolina Land & Timber Co., 173 S.C. 357, 362, 175 S.E. 852, 854 (1934). In theory then, the claimant would be entitled to sue for punitive damages. Under the amendment to the UCC, however, such remedies probably are no longer available in an action based solely on the timber sales contract.

Timber Rights Under § 6-2-102(2)

The amended language of S.C. Code § 36-2-107(2) provides in relevant part:

A contract for the sale . . . of timber to be cut is a contract for the sale of goods within this chapter whether the subject matter is to be severed by the buyer or by the seller, even though it forms a part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.

Before amendment, this UCC section provided that a contract for the sale of timber that was to be cut and removed by the seller was a contract for the sale of goods under the S.C. UCC. A contract for a sale of timber to be cut and removed by the buyer was not deemed a sale of goods under the old S.C. UCC provision.

Presumably the only remedy now existing for a breach of a contract for conveyance of timber under the UCC is an action based on contract rights only. Damages for such an action are those provided under the UCC. See Holmes v. Westvaco Corp., 289 S.C. 591, 347 S.E.2d 887 (Ct. App. 1986). An examination of the majority and dissenting opinions in Holmes illustrates the different resultsobtainable when a contract for the sale of timber is treated as a sale of goods as opposed to a sale of realty.

The plaintiff in Holmes was the seller of timber...