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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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