              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 sub-
                                ject 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~eror not persons
     engaged in the business of buying and selling of grow-
     ing 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 Legisla-
     ture, 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 en-
     gaged 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:7econsumation
     3f the transaction and therefore, under the deed the
     title :3 tiietixbel;passes as personalty and not as
     realt;~."
               Generally speaking a considerable bccly of case law has
grown out of t‘heownership 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‘hatsort 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 urposes and personalty for others. (See E.L. Bruce Co. v.
    Hannon, 213 S.W. 862; Dunsmore v. Blount-Decker Lumber Co., 198 S.W.
    603; Montgomery v. Peach River Lumber Co., 117 S.W. 1061).

                  We quote from Texas Jurisprudence, Vol. 28,   page 369,       as
    follows:
                  "'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).
                  We quote from the case of Davis v. Conn, 161,    S.W. 33 as
    follows:
                   "There are quite a number of generally re-
         ported 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 rea-
         sons 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,erturn 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;heyme woted and from
         which they draw their support, therefore, in that
         sense, t:hesale passed 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 suciiparticular 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.
              Trusting that the foregoing fully answers your inquiry,
we are
                              Yours very truly
                              ATTORNEY GENERAL OF TEXAS
                              By s/Ardell Williams
                                   Ardell Williams
                                   Assistant
AW:RS:wc

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
