D. G. Smalley and Nell R. Smalley - Page 20





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               Noting that some Oregon case law arguably supported a                  
          contrary view that a sale of standing timber is deemed to be a              
          conveyance of an estate upon condition subsequent, this Court               
          stated:                                                                     
                    Arguendo, if, from the record, we were able to                    
                    find and hold that the standing timber was realty                 
                    in the hands of the petitioner, we must                           
                    nevertheless reach the same conclusion as above                   
                    for the reasons stated below.                                     
                           *    *    *    *    *    *    *                            
                    * * * petitioner exchanged a fee simple title for                 
                    a limited right to cut and remove standing timber.                
                    It is our conclusion that the right to cut and                    
                    remove standing timber is so intrinsically                        
                    different from a fee in land that an exchange of                  
                    one for the other is not an exchange of like                      
                    property within * * * [the meaning of the                         
                    predecessor statute to section 1031].  [Id. at                    
                    197.]                                                             
               Petitioners argue that Oregon Lumber Co. v. Commissioner,              
          supra, is distinguishable because under Georgia State law, both             
          sets of property involved in petitioner’s exchange constituted              
          realty.  Furthermore, petitioners argue, the above-quoted                   
          statements from Oregon Lumber are dicta and thus not controlling.           
               We agree with petitioners that under Georgia State law, the            
          prevailing view appears to be that a conveyance of standing                 
          timber, to be severed by the buyer, generally constitutes a                 
          transfer of real property.  See Smith v. Alexander & Bland, 148             
          S.E. 98 (Ga. 1929); McLendon Bros. v. Finch, 58 S.E. 690, 691-692           
          (Ga. 1909); McRae v. Stillwell, 36 S.E. 604 (Ga. 1900); Chavers             






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