We have examined the case of Zimmerman v. Wilson, 77 So. 364,1 wherein, upon the same issue between these same parties as to other lands included in the deeds here claimed under, it was ruled that the evidence showed that some of the timber still standing was subject to the timber grant when it was made in 1899. We think there is sufficient difference in the testimony in the two cases to justify the different conclusions reached.
There is some testimony to support the claim that respondent is now the owner of "one pine tree" still standing, which was a timber tree in 1899. But, taking the testimony as a whole, we are not reasonably satisfied that such was its status then; especially in view of the fact that undisputed testimony shows that respondent's agent, who cut over the land a short time after the grant, did not so regard or treat it, but in fact rejected it as unfit.
Counsel contends with much earnestness that the rule which requires a timber owner to point out, in a proceeding like this, the particular trees still standing which have passed under his deeds, imposes upon him a heavy burden which will often be very expensive and intolerably troublesome.
Conceding the force of this argument, we are nevertheless convinced that such a requirement is necessary in order to make an adjudication which would be of any value at all in the settlement of conflicting claims to timber, a part only of which is in dispute. To adjudge merely that the timber claimant has one or more trees out of many, "somewhere on the land," would not meet the purpose and policy of the proceeding.
The application will be overruled.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
1 201 Ala. 70.