93 Mass. 141 | Mass. | 1865
The doctrine is now well settled that a sale of timber or other product of the soil, which is to be severed from the freehold by the vendee under a special license to enter on the land for that purpose is, in contemplation of the parties, a sale of chattels only, and cannot be regarded as passing an interest in the land, and is not for that reason required to be in writing as being within the statute of frauds. Such license to enter on the land of another, so far as it is executed, is irrevocable ; because, by the severance of the timber or other growth of the soil from the freehold, in execution of the license, it becomes personal property, the title to which is vested in the vendee absolutely, and the rule applies that where chattels belonging t<? one person are placed or left on the land of another, with the
These principles have been recognized and established as the law of this commonwealth in several adjudicated cases. In Claflin v. Carpenter, 4 Met. 580, 582, it was held that a contract for the sale of standing wood to be cut and severed from the freehold was to be construed “ as passing an interest in the trees when they are severed,” and that a license to enter on the land under such contract could not be countermanded after it had been acted on. So in Nettleton v. Sikes, 8 Met. 34, it was said by the court that a beneficial license to be exercised on land, “ when acted upon under a valid contract cannot be countermanded.” To the same effect are Nelson v. Nelson, 6 Gray, 385, and Douglas v. Shumway, 13 Gray, 498. In these cases it appeared that the license had been acted on by the vendee, who had entered on the land and. cut the timber which was the subject of the contract of sale, and had thereby acquired a title to the wood .as personal property. In Giles v. Simonds,
The application of the principles established by these cases is decisive of the rights of the parties to these actions. Taking the most favorable view of these cases in behalf of the defendants, they had acquired no title to the wood standing on the land of the plaintiff. They had only an executory contract for the purchase of the trees growing on the premises, with a license from the plaintiff’s grantor to enter and cut and remove the same. This license, not having been acted on, was revocable. And it was revoked by the deed of the land to the plaintiff by the licensor, by which it was conveyed absolutely and free of all incumbrances to the plaintiff. In Cook v. Stearns, 11 Mass. 533, 538, it was held that the transfer of land to another, or even a lease of it, without any reservation, would, of itself, be a countermand of a license. Clearly it must be so, because an unqualified grant of land carries with it the title to everything which is part of the realty or annexed to the freehold, and is inconsistent with a right in any other person than the grantee to enter on the land and remove therefrom trees growing thereon or other products of the soil. Coleman v. Foster, 1 Hurlst. & Norm. 37.
It follows that the ruling of the court was erroneous at the trial of this cause. The defendants were trespassers, and were liable to the plaintiff for entering her close and cutting and re» moving wood therefrom.
Exceptions sustained.